ORDINANCE NO. 2008-01 AN ORDINANCE OF THE …Ordinances.pdfMelb.Bch/Indemnification Ordinance...

Melb.Bch/Indemnification Ordinance 12/27/07 1

ORDINANCE NO. 2008-01

AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA RELATING TO INDEMNIFICATION, AND HOLDING A PERSON HARMLESS, BY THE TOWN; MAKING FINDINGS; REPEALING SECTION 1., ORDINANCE NO. 2006-10, RELATING TO INDEMNIFICATION; CREATING SECTION 1-40, MELBOURNE BEACH CODE OF ORDINANCES; PROVIDING FOR RESTRICTIONS ON THE TOWN INDEMNIFYING OR HOLDING A PERSON HARMLESS; PROVIDING FOR SEVERABILITY AND INTERPRETATION; PROVIDING FOR THE REPEAL OF ORDINANCES OR RESOLUTIONS IN CONFLICT HEREWITH; AND PROVIDING AN EFFECTIVE DATE.

WHEREAS, Section 1., Ordinance No. 2006-10, prohibited the Town from

indemnifying any other person or entity;

WHEREAS, the Town Commission finds that there are instances when it is in the

public interest to indemnify or hold harmless another person;

WHEREAS, in 2005 in American Home Assurance Co. v. National Railroad Passenger

Corp., 908 So.2d 459 (Fla. 2005), the Florida Supreme Court determined that municipalities

do have the power to indemnify, and that any contract of indemnification without a cap on the

limits of indemnification was open-ended as to a municipality’s liability;

WHEREAS, the Town Commission finds that it is in the public interest to set an open

and public policy as to which individuals who are a part of Melbourne Beach Town

government may be relied upon as having the power to indemnify or hold harmless another

person or legal entity; and

WHEREAS, no one who is not authorized by the Town Commission consistent with

this Ordinance shall have the power to bind the Town of Melbourne by contract or otherwise

to indemnify or hold harmless another person or legal entity, and any such act shall be

deemed to be an ultra vires act.


BE IT ENACTED BY THE TOWN OF MELBOURNE BEACH, FLORIDA: SECTION 1. That an uncodified section of the Town Code of the Town of Melbourne

Beach, Florida, contained in Section 1., Ordinance No. 2006-10, is hereby amended to read

as follows:

The Town of Melbourne Beach, Brevard County, Florida, its officers, employees, agents, or

representatives are hereby prohibited from entering into any contract with any government

an/or [sic] non-governmental entity, private entity, or person that contains an agreement to

indemnify such government and/or non-governmental entity, private entity, or person.

[COMMISSION COMMENT: It is the intent of the Town Commission that Section 1. of Ordinance No. 2006-10 be repealed.]

SECTION 2. That the Town Code of the Town of Melbourne Beach, Florida, is hereby

amended by adding an Article, to be numbered II., and a Section, to be numbered 1-40,

which said section reads as follows:

ARTICLE II. INDEMNIFICATION; CONTRACTS WITH TOWN.

§1-40. Indemnification.

(a) To be valid and binding against the Town, any contract of indemnification,

agreement to hold another party harmless, or offer to indemnify or hold another party

harmless, in which the Town is an interested party and indemnifies or holds harmless another

person or legal entity must be signed, endorsed, or executed as otherwise provided by this

code and the Town charter. No contract of indemnification, agreement to hold another party

harmless, or offer to indemnify or hold another party harmless, in which the Town is an

interested party and indemnifies, or holds harmless, another person or legal entity shall be


valid and binding against the Town, unless said indemnification has been approved by the

Town commission and is otherwise consistent with this code.

(b) Adding a party to an insurance policy of the Town as an “additional insured”

shall not be considered to be an act of indemnification or an agreement to otherwise hold

another party harmless pursuant to this code section.

(c) Any contract in which the Town is an interested party which is signed or

executed in violation of this section is an ultra vires act and is null and void.

SECTION 3. Severability/Interpretation Clause.

(a) That in the event that any term, provision, clause, sentence or section of this

Ordinance shall be held by a court of competent jurisdiction to be partially or wholly

unenforceable or invalid for any reason whatsoever, any such invalidity, illegality, or

unenforceability shall not affect any of the other or remaining terms, provisions, clauses,

sentences, or sections of this Ordinance, and this Ordinance shall be read and/or applied as

if the invalid, illegal, or unenforceable term, provision, clause, sentence, or section did not

exist.

(b) That in interpreting this ordinance, with the exception of ordinance section

numbers, underlined words indicate additions to existing text, and stricken through words

include deletions from existing text. Asterisks (****) indicate a deletion from the ordinance of

text, which exists in the Code of Ordinances. It is intended that the text in the Code of

Ordinances denoted by the asterisks and not set forth in this Ordinance shall remain

unchanged from the language existing prior to adoption of this ordinance.


SECTION 4. Ordinances and Resolutions in Conflict. That all ordinances or

resolutions or parts thereof that may be determined to be in conflict herewith are hereby

repealed.

SECTION 5. Effective Date. That this Ordinance shall become effective immediately

upon its adoption.

This Ordinance was passed on the first reading at a regular meeting of the Town

Commission on the 23rd day of January, 2008, and adopted on the second/final reading at a

regular meeting of the Town Commission on the 20th day of February, 2008.

By:_________________________ William G. Stacey, Mayor

ATTEST: ____________________________ Lenore R. Milan, CMC, Town Clerk Ordinance No. 2008-01

Melb.Bch/CCCL.Ord 11/16/07 1


AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, RELATING TO THE TOWN COASTAL SETBACK LINE; MAKING FINDINGS; AMENDING THE SECTION 5A-2, LAND DEVELOPMENT CODE, APPENDIX A, TOWN CODE OF THE TOWN OF MELBOURNE BEACH, FLORIDA; AMENDING THE DESCRIPTION AND LOCATION OF THE TOWN COASTAL SETBACK LINE; PROVIDING FOR SEVERABILITY AND INTERPRETATION; PROVIDING FOR THE REPEAL OF INCONSISTENT RESOLUTIONS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, a coastal setback line was created in 1981 for

Brevard County that ran roughly along the crest of the beach

dune line;

WHEREAS, the then-existent Florida Department of Natural

Resources now known as the Florida Department of Environmental

Regulation to implement Chapter 161, Florida Statutes, in the

mid-1980’s conducted surveying activities in Florida coastal

counties to set a coastal construction control line (“CCCL”);

WHEREAS, the purpose of the CCCL was intended to protect

the beaches and shores from erosion by protection of the coastal

dune system and to protect structures built along the coast from

the natural effects of shoreline erosion by setting a

construction setback seaward of which construction should only

be permitted under certain circumstances;

WHEREAS, the CCCL was set using scientific and engineering

data;


WHEREAS, the Town of Melbourne Beach and other

municipalities were asked to further protect the beaches and

shores from erosion by protection of the coastal dune system and

to protect structures built along the coast from the natural

effects of shoreline erosion by setting a local construction

setback line, which could be varied through a variance system;

WHEREAS, by adoption of Town Ordinance No. 85-8 on January

20, 1986, the Town of Melbourne Beach adopted local construction

setback line regulatory system and adopted a temporary coastal

construction setback line 25 feet landward of the 1981 Brevard

County setback, all pending completion of surveying, data

collection, and adoption of the new State of Florida CCCL by the

then-existent Florida Department of Natural Resources;

WHEREAS, at the time of adoption of the local construction

setback line regulatory system the Town Commission specifically

indicated plans to amend the location of the new coastal setback

line to be the same as the CCCL, then under preparation by the

State of Florida;

WHEREAS, the Town Commission’s legislative intent to do so

was memorialized in Section 5A-3, Appendix A, Melbourne Beach

Town Code, which states:

§ 5A-5. RELOCATION OF LINES. The Town Commission hereby declares that as a result of anticipated long-term coastline


changes, due to storm events, beach erosion, dune damage, and rising relative sea level, causing the coastline to continue to move landward, it shall be the intent of the Town Commission to reconsider the location of the coastal setback line from time to time as such coastline changes dictate the necessity therefor.

WHEREAS, on December 4, 1986, the State of Florida adopted

the new CCCL by adoption of Rule 16B-26.017, Florida

Administrative Code, which as since been moved and re-adopted by

the Florida Department of Environmental Regulation as Rule 62B-

26.017, Florida Administrative;

WHEREAS, the CCCL in many portions of the Town generally

follows the West side of the A-1-A right-of-way;

WHEREAS, the Town Commission for reasons unknown never

followed “reconsider[ed] the location of the coastal setback

line” and implemented the CCCL by adoption of an amendatory

ordinance;

WHEREAS, during the 1990’s and in the first decade of the

new millennia the Town Board of Adjustment periodically adopted

variances based on the CCCL as if in fact it had been re-set by

the Town Commission;

WHEREAS, the Town Commission hereby registers its intent to

formally reset the Town’s Coastal Setback Line to coincide with

the CCCL adopted by the State of Florida in late 1986;


WHEREAS, the Town’s adopted Comprehensive Plan includes in

its Coastal Zone Management/Conservation Element the following

objectives and policies supportive of this Ordinance, including:

Objective 1.0: Protect the coastal dune system, associated native vegetative communities and beaches from the impacts of development.

Objective 2.0: Enhance and improve existing dune systems, and maintain permanent public access to he beaches and shores according to the level of service standards outlined in the Recreation Open Space Element. (emphasis supplied)

Policy 2.3: Increase vegetation on the dune system to prevent erosion and plant “barrier vegetation” adjacent to dune crossovers to discourage pedestrian access around the structure.

Objective 4.0: Protect the sea turtle, the manatee [and] other wildlife and wildlife habitat from the adverse effects of human interference and enhance Melbourne Beach as a wildlife breeding area.

WHEREAS, the Town Planning & Zoning Board, sitting as the

Local Planning Agency, has recommended adoption of this

Ordinance as being in promotion of the public safety and welfare

as a means of protecting the beaches and shores from erosion by

protection of the coastal dune system and to protect structures

built along the coast from the natural effects of shoreline

erosion and finds that based on the foregoing Objectives and

Policies in the Comprehensive, among others, this Ordinance is

consistent with the Town’s Comprehensive Plan.


BE IT ENACTED BY THE TOWN OF MELBOURNE BEACH, FLORIDA:

SECTION 1. That Section 5A-2, Appendix A, of the Town Code

of the Town of Melbourne Beach, Florida, is hereby amended to

read as follows:

§ 5A-2. COASTAL SETBACK LINE ESTABLISHED.

There is hereby established and exists a town coastal

setback line, for all property located within the town. The

coastal setback line shall be in the same location as located 25

feet in a landward direction. from the Florida Coastal

Construction Line as adopted on December 4, 1986 by the

Department of Environmental Protection and described in Rule

62B-26.017, Florida Administrative Code.


(a) In the event that any term, provision, clause,

sentence or section of this Ordinance shall be held by a court

of competent jurisdiction to be partially or wholly

unenforceable or invalid for any reason whatsoever, any such

invalidity, illegality, or unenforceability shall not affect any

of the other or remaining terms, provisions, clauses, sentences,

or sections of this Ordinance, and this Ordinance shall be read

and/or applied as if the invalid, illegal, or unenforceable

term, provision, clause, sentence, or section did not exist.


(b) In interpreting the provisions of this Ordinance,

the following rules and symbols shall apply:

(1) Words underlined are additions to existing

text.

(2) Words stricken through are deletions from

existing text.

(3) Asterisks (* * *) indicates a deletion from

the Ordinance of text existing in the Code of Ordinances. It is

intended that the text in the Code of Ordinance denoted by the

asterisks and not set forth in this Ordinance shall remain

unchanged from the language existing prior to adoption of this

Ordinance.

SECTION 3. Ordinances and Resolutions in Conflict. All

ordinances or resolutions or parts thereof that may be

determined to be in conflict herewith, except portions of the

Comprehensive Plan, are hereby repealed.

SECTION 4. Effective Date. This Ordinance shall become

effective upon adoption.

PASSED by the Town Commission of the Town of Melbourne Beach on first reading on the ___ day of ____________, 200__,

[Intentionally Left Blank]


and ADOPTED by the Town Commission of the Town of Melbourne Beach, Florida, on final reading on the ___ day of ______________, 2008.

TOWN OF MELBOURNE BEACH, FLORIDA By:____________________________ William G. Stacey, Mayor

ATTEST: (TOWN SEAL) _______________________ Lenore R. Milan, CMC, Town Clerk

Melb.Bch/Building Code.Ord 12/27/07 1


AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, RELATING TO BUILDING AND CONSTRUCTION-RELATED CODES; MAKING FINDINGS; AMENDING CHAPTER 4A, APPENDIX A, MELBOURNE BEACH CODE OF ORDINANCES; REPEALING SECTION 4A-3, RELATING CERTIFICATES OF COMPETNENCY AND INSURANCE REQUIREMENTS; AMENDING SECTION 4A-20, DELETING REFERENCES TO THE SOUTHERN STANDARD BUILDING CODE AND ADOPTING THE FLORIDA BUILDING CODE AND THE FLORIDA RESIDENTIAL BUILDING CODE; REPEALING SECTIONS 4A-21, 4A-22, 4A-23, 4A-24, 4A-25, RELATING TO THE SOUTHERN STANDARD BUILDING CODE APPENDICES, ACCESS BY HANDICAPPED PERSONS, MANUFACTURED BUILDINGS, THERMAL EFFICIENCY STANDARDS, AND REPEALING THE SWIMMING POOL CODE; CREATING SECTION 4A-26 ADOPTING THE FLORIDA EXISTING BUILDING CODE; AMENDING SECTION 4A-35 RELATING TO APPROVAL BY THE DIVISION OF HOTELS AND RESTAURANTS FOR CERTAIN PUBLIC LODGING AND FOOD SERVICE ESTABLISHMENTS; REPEALING SECTION 4A-36 RELATING TO EXTENSION AND EXPIRATION OF BUILDING PERMITS; AMENDING SECTION 4A-37 DELETING REFERENCES TO REPEALED SECTION 4A-3; AMENDING SECTION 4A-50 MODIFYING THE CURRENTLY EFFECTIVE ELECTRICAL CODE; REPEALING SECTIONS 4A-51 AND 4A-52 RELATING ELECTRICAL CODE APPENDICES AND ELECTRIC RACEWAYS; REPEALING SECTION 4A-60 RELATING THE FLORIDA EXISTING BUILDING CODE, 1988 EDITION; AMENDING SECTION 4A-63 RELATING TO THE 1985 UNSAFE BUILDING ABATEMENT CODE BY REVISING REFERENCES TO THE BUILDING CODE; AMENDING SECTION 4A-65 DELETING THE SOUTHERN STANDARD PLUMBING CODE AND ADOPTING THE FLORIDA PLUMBING CODE; REPEALING SECTIONS 4A-66, 4A-67, AND 4A-68 ADOPTING APPENDICES TO THE SOUTHERN STANDARD PLUMBING CODE, PLUMBING OFFICIAL DUTIES, AND CHECKING OF PLANS AND SPECIFICATIONS BY PLUMBING OFFICIAL; REPEALING SECTIONS 4A-69, 4A-70, AND 4A-71 RELATING ALTERNATE MATERIALS AND


METHODS, STOP WORK ORDERS, AND PLUMBING PERMITS; AMENDING SECTION 4A-81, DELETING REFERENCES TO THE STANDARD MECHANICAL CODE AND ADOPTING THE FLORIDA MECHANICAL CODE; REPEALING SECTION 4A-82 RELATING TO APPENDICES TO THE STANDARD MECHANICAL CODE; AMENDING SECTION 4A-83, DELETING REFERENCES TO THE STANDARD GAS CODE AND ADOPTING THE FLORIDA FUEL GAS CODE; REPEALING SECTION 4A-84 RELATING TO APPENDICES TO THE STANDARD GAS CODE; REVISING SECTION 4A-83 DELETING REFERENCES TO THE 1997 EDITION OF THE STANDARD GAS CODE AND ADOPTING BY REFERENCE THE FLORIDA FUEL GAS CODE; REPEALING SECTION 4A-84 RELATING TO APPENDICES OF THE SOUTHERN STANDARD GAS CODE; AMENDING SECTION 4A-94(a) ADOPTING ADDITIONAL STANDARDS REQUIRED FOR CONSTRUCTION REQUIREMENT IN SPECIAL FLOOD HAZARD AREAS; REVISING SECTION 4A-123(a) RELATING TO STRUCTURAL STANDARDS UNDER THE COASTAL CONSTRUCTION CODE; REPEALING SECTIONS 4A-141 AND 4A-142, RELATING TO THE BUILDING OFFICIAL SERVING EX OFFICIO AS THE PLUMBING INSPECTOR AND THE PLUMBING INSPECTOR AND TO PENALTIES; AMENDING SECTION 4A-145 RELATING TO THE REQUIREMENT OF A BUILDING PERMIT AND WITH REGARD TO EXPIRATION THEREOF; REPEALING SECTIONS 4A-146 AND 4A-147 RELATING TO CERTIFICATES OF OCCUPANCY AND REQUIRING COMPLIANCE WITH THE SOUTHERN STANDARD BUILDING CODE; PROVIDING FOR SEVERABILITY AND INTERPRETATION; PROVIDING FOR THE REPEAL OF INCONSISTENT RESOLUTIONS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, pursuant to Chapter 2000-141, §73, Laws of

Florida, codified as Section 553.73, Florida Statutes, the

Legislature provided that local governments within the State of

Florida would no longer use the Southern Standard Building Code,


the Standard Plumbing Code, the Standard Mechanical Code, the

Standard Gas Code, and other construction-related codes;

WHEREAS, pursuant to Chapter 2000-141, §73, Laws of

Florida, codified as Section 553.73, Florida Statutes, the

Legislature has provided that local governments within the State

of Florida will utilize The Florida Building Code, and that the

Florida Building Code will “contain shall contain provisions or

requirements for public and private buildings, structures, and

facilities relative to structural, mechanical, electrical,

plumbing, energy, and gas systems, existing buildings,

historical buildings, manufactured buildings, elevators, coastal

construction, lodging facilities, food sales and food service

facilities, health care facilities, including assisted living

facilities, adult day care facilities, hospice residential and

inpatient facilities and units, and facilities for the control

of radiation hazards, public or private educational facilities,

swimming pools, and correctional facilities”;

WHEREAS, the purpose of this Ordinance is to implement

Chapter 2000-141 and other revisions to Florida law relating to

construction regulation;

WHEREAS, the Town of Melbourne Beach Planning and Zoning

Board, sitting as both the Planning and Zoning Board and the

Local Planning Agency, has found and determined that this


Ordinance is in the best interest of the public health, safety,

aesthetics, and welfare, and is consistent with the applicable

provisions of the Town’s adopted Comprehensive Plan; and

WHEREAS, the Town Commission adopts the findings of the

Local Planning Agency as its own,


SECTION 1. That Section 4A-3, Appendix A, of the Town Code

of the Town of Melbourne Beach, Florida, is hereby amended to

read as follows:

§4A-3. CERTIFICATE OF COMPETENCY AND INSURANCE REQUIREMENTS FOR

CONSTRUCTORS. Repealed.

No permit shall be issued to a building contractor,

electrical contractor, plumbing contractor, or any other

commercial mechanic requesting to perform a service who does not

have a Certificate of Competency issued by the county or the

state for the current period and who has not complied with all

state insurance requirements of the laws of the state.

Homeowners shall comply with any and all requirements prescribed

in the appropriate building or other codes adopted in this

chapter.

SECTION 2. That Section 4A-20, Appendix A, of the Town

Code of the Town of Melbourne Beach, Florida, is hereby amended

to read as follows:


[Substantial Rewording of Language. See Section 4A-20.]

§4A-20. FLORIDA BUILDING CODE AND THE FLORIDA RESIDENTIAL

BUILDING CODE ADOPTED.

(a) The Florida Building Code and the Florida Residential

Building Code, current editions as mandated by the Florida

Legislature and published by the Florida Building Commission,

are hereby adopted by reference and incorporated herein, as if

fully set out.

(b) The board of adjustment shall serve as the board of

adjustment and appeals, as described in the Florida Building

Code, for The Florida Building Code and the Florida Residential

Building Code.

(c) Wind speed zones. The following wind speed zone is

hereby established for the entire town: One hundred thirty

(130) mph, three-second gust.

(d) Wind exposure categories. The following wind exposure

category is hereby established for the entire town: Exposure

"C".

(e) Wind borne debris region. All of the town in the wind

borne debris region.




to read as follows:

§4A-21. BUILDING CODE APPENDICES ADOPTED. Repealed.

The following appendices of the Florida Building Code 1997

edition of the Standard Building Code, as revised, are hereby

adopted for use within the town: Appendix A, Appendix

D, Appendix G, Appendix H, and Appendix I.



to read as follows:

§4A-22. SWIMMING POOL CODE ADOPTED. Repealed.

The 1988 edition of the Southern Standard Swimming Pool

Code, shall be known as the Town of Melbourne Beach Swimming

Pool Code and is hereby adopted by reference and incorporated

herein as if fully set out. The provisions thereof shall be

controlling within the town except to the extent any such

provision is in conflict with the Town Charter or any town

ordinance or provision therein. The following appendices of the

1988 edition of the Standard Swimming Pool Code are hereby

adopted: Appendix A, Appendix B and Appendix C.




to read as follows:

§4A-23. STANDARDS FOR ACCESSIBILITY BY HANDICAPPED PERSONS

ADOPTED. Repealed.

The standards for Accessibility by Handicapped Persons,

Part V, Section 553.45 et seq. Florida Statutes, shall be known

as the Town of Melbourne Beach Standards for Accessibility by

Handicapped and is hereby adopted by reference and incorporated

herein as if fully set out. The provisions thereof shall be

controlling within the town.



to read as follows:

§4A-24. STANDARDS FOR MANUFACTURED BUILDINGS. Repealed.

The standards for manufactured buildings, Florida

Administrative Code Chapter 9B-1, shall be known as the Town of

Melbourne Beach Standards for Manufactured Buildings and is

hereby adopted by reference and incorporated herein as if fully

set out. The provisions thereof shall be controlling within the

town.




to read as follows:

§4A-25. THERMAL EFFICIENCY STANDARDS ADOPTED. Repealed.

The Florida Energy Efficiency Code for Building

Construction, 1997 edition, as published by the State of Florida

Department of Community Affairs, shall be known as the "Town of

Melbourne Beach Thermal Efficiency Code" and is hereby adopted

by reference and incorporated herein, as if fully set out. The

provisions thereof for all new and renovated buildings, except

as exempted by law or by rule promulgated by the Florida

Department of Community Affairs, shall be controlling within the

town.

SECTION 8. That the Town Code of the Town of Melbourne

Beach, Florida, is hereby amended by adding a Section, to be

numbered Section 4A-26, Appendix A, which said section reads as

follows:

§4A-26. FLORIDA EXISTING BUILDING CODE ADOPTED.

The Florida Existing Building Code, most current edition,

as mandated by the Florida Legislature and published by the

Florida Building Commission, is hereby adopted by reference and

incorporated herein as if fully set out.


(a) The Board of Adjustment and Appeals shall serve as the

Board of Adjustment and Appeals for this code.

(b) Appendices B, C and D of the Florida Existing Building

Code are hereby adopted.



to read as follows:

§4A-35. STATE AND COUNTY APPROVALS FOR CERTAIN BUILDING PERMIT

APPLICATIONS.

All applications for building permits requiring plan or

other approvals by the Florida Division of Hotels and

Restaurants approval of the Hotel/Motel Restaurant Commission of

the state shall be stamped, sealed or and signed by the duly

authorized representative of the aforesaid division State

Commission. All applications for building permits requiring

sanitary facilities shall be accompanied by the approval of the

County Health Department or the County Utilities Department for

sanitary connections.



to read as follows:

§4A-36. APPLICATION TO SET FORTH COMPLETION DATE; EXPIRATION

AND EXTENSION OF BUILDING PERMITS. Repealed.


(a) Notwithstanding any provision of the Standard Building

Code to the contrary, all applications for building permits

shall state a reasonable completion date which shall be approved

by the Building Official. Every permit issued hereunder for

single-family residence will become invalid if not completed

within 90 days of the completion date, and every permit for

multiple-family or commercial buildings will become invalid if

not completed within 360 days of the completion date.

(b) Notwithstanding any provision of the Standard Building

Code to the contrary, every permit issued hereunder shall become

invalid 90 days after its issuance unless the work authorized

thereunder has been commenced or 90 days after any commenced

work is suspended or abandoned.

(c) The Building Official may, for just cause shown,

extend the time limit of building permits for an additional 90

days. If such extension is so granted, a fee of 10% of the

original permit cost shall be paid for the extension.



to read as follows:

§4A-37. PERMIT FEES.

All parties identified in § 4A-3 must receive a permit and

inspection for the work described below. The fee schedule for


any permit to be issued pursuant to Chapter 4A shall be provided

by the Town Commission by resolution.



to read as follows:

§4A-50. ELECTRICAL OODE ADOPTED.

(a) The National Electric Code 1993, NFPA 70, current

edition as mandated by the Florida Legislature and published by

the National Fire Protection Association of Quincy,

Massachusetts, 02210 and standards set forth in Section 553.19,

Florida Statutes, is hereby adopted by reference by the town and

incorporated by reference into the laws and ordinances of the

town as though set forth in full herein as if fully set out and

shall be known as the “Town of Melbourne Beach Electrical Code”.

The provisions thereof shall be controlling within the town

except to the extent any such provision is in conflict with the

Town Charter or any town ordinance or provision therein.

(b) The electrical inspector is hereby given the power to

disconnect extension cords, temporary wiring, branch circuits,

sub-feed conductors, or the main service supplying electrical

energy to any portion of an electrical wiring system on or in

buildings, or on premises, if this wiring is in the opinion of

the inspector considered to be hazardous to life or property.


Any person supplying current must disconnect service from the

source of supply upon instructions from the electrical inspector

where hazards are deemed to exist, after receiving written

notice from the electrical inspector.

(c) The board of adjustment and appeals shall serve as the

board of adjustment and appeals for this code.



to read as follows:

§4A-51. ELECTRICAL CODE APPENDICES ADOPTED. Repealed.

Reserved.



to read as follows:

§4A-52. APPROVED RACEWAYS REQUIRED; EXCEPTIONS. Repealed.

All electrical wiring within or on all buildings

hereinafter erected, and all such alterations in and additions

to such wiring in or on buildings now existing shall be

installed in an approved raceway system approved by a testing

laboratory listed in the National Electrical Code, with the

equivalent of not less than No. 12 wire, except that this

provision shall not apply to private residences and duplex

apartment buildings.




to read as follows:

§4A-60. STANDARD EXISTING BUILDINGS CODE ADOPTED. Repealed.

The 1988 edition of the Standard Existing Buildings Code,

as published by the Southern Standard Building Code Congress

International, Inc., is hereby adopted by reference by the town

for the purpose of prescribing minimum standards governing the

use, occupancy and maintenance of existing buildings and other

physical things and conditions essential to make existing

buildings safe, sanitary and fit for human habitation. The 1988

edition of the Standard Existing Buildings Code shall be known

as the "Town of Melbourne Beach Existing Buildings Code" and its

adoption by reference incorporates same as if fully set out. The

provisions thereof shall be controlling within the town except

to the extent any such provision is in conflict with the Town

Charter or any town ordinance or provision therein.



to read as follows:

§4A-63. UNSAFE BUILDING ABATEMENT CODE ADOPTED.

(a) The Standard Unsafe Building Abatement Code, 1985

edition, as published by the Southern Building Congress


International, Inc., shall be known as a part of the "Town of

Melbourne Beach Unsafe Building Abatement Code" and is hereby

adopted by reference and incorporated herein, as if fully set

out. The provisions thereof, shall be controlling within the

town, except to the extent any such provision is in conflict

with the town charter Town Charter or any town ordinance or

provision therein. The board of adjustment and appeals shall

serve as the board of adjustment and appeals for this cod

(b) Amendments to Standard Unsafe Building Abatement

Code. The Standard Unsafe Building Abatement Code, 1985

edition, is hereby amended as follows:

101.3. The provisions of this code shall apply to all

unsafe buildings or structures, as herein defined, and shall

apply equally to new and existing conditions. Any reference in

this code to the Board of Adjustments and Appeals shall refer to

the Board of Adjustment as created in Chapter 7A, Appendix A,

Town Code.

101.4 Alteration, Repairs or Rehabilitation Work.

101.4.1. Alterations, repairs or rehabilitation work may

be made to any existing building without requiring the building

to comply with all the requirements of the Standard Building

Code provided that the alteration, repair or rehabilitation work

conforms to the requirements of the Standard Building Code as


adopted and modified by § 4A-20, Appendix A, Town Code, for new

construction. The Building Official shall determine, subject to

appeal to the Board of Adjustment the extent, if any, to which

the existing building shall be made to conform to the

requirements of the applicable Florida Building Code Standard

Building Code for new construction.

105 Board of Adjustment. The Board of Adjustment shall

operate pursuant to the provisions set forth in §§ 7A-150

through 7A-152, Appendix A, Town Code. Sections 105.1 through

105.5 are hereby deleted from this code.

302 Notice.

302.1.1 Content. The Building Official shall prepare and

issue a notice of unsafe building directed to the owner of

record of the building or structure. The notice shall contain,

but not be limited to, the following information:

* * *

4. A statement advising that any person having any

legal interest in the property may appeal the notice by the

Building Official to the Board of Adjustment; and that such

appeal shall be in writing in the form specified in Section 401

and shall be filed with the Building Official within 30 days

from the date of the notice and that failure to appeal in the


time specified will constitute a waiver of all rights to an

administrative hearing.

302.2 Recording of Notice. If the notice is not complied

with nor an appeal filed within the allotted time, the Building

Official shall file in the Office of the Clerk of the Circuit

Court a certificate describing the property and certifying that

the building or structure is unsafe and that the owner of record

has been served. This certificate shall remain on file until

such time as the conditions rendering the building or structure

unsafe have been abated. At such time, the Building Official

shall file a new certificate indicating that corrective action

has been taken and the building or structure is no longer unsafe

from that condition.

401 Right of Appeal.

401.1 Filing. Any person entitled to service in

accordance with the provisions of Chapter 3 may appeal any

action of the Building Official under this code to the Board of

Adjustment. Such appeal must be filed in writing with the

Building Official within 60 days from the date of service and

must contain at least the following information:

1. Identification of the building or structure

concerned by street address or legal description.


2. A statement identifying the legal interest of each

appellant.

3. A statement identifying the specific order or

section being appealed.

4. A statement detailing the issues on which the

appellant desires to be heard.

5. The legal signature of all appellants and their

official mailing address.



to read as follows:


§4A-65. STANDARD PLUMBING CODE ADOPTED.

(a) The Florida Plumbing Code, current edition as mandated

by the Florida Legislature, and published by the Florida

Building Commission is hereby adopted by reference and


(b) The board of adjustment and appeals shall serve as the


(c) The following appendices of the Florida Plumbing Code

are hereby adopted: Appendix B, Appendix D, and Appendix E.




to read as follows:

§4A-66. PLUMBING CODE APPENDICES. Repealed.

The following appendices of the 1994 edition of the

Standard Plumbing Code are hereby adopted: Appendix A, Appendix

B, Appendix C, Appendix D, Appendix F, Appendix G, Appendix I,

and Appendix J. All other appendices are deleted.



to read as follows:

§4A-67. POWERS AND DUTIES OF THE PLUMBING OFFICIAL. Repealed.

(a) The Building Official shall act as the Plumbing

Official and as a plumbing inspector. Whenever necessary to make

an inspection to enforce any of the provisions of this Code or

whenever the Plumbing Official has reasonable cause to believe

that there exists in any building or upon any premises any

condition or code violation which makes such building or

premises unsafe, dangerous or hazardous, the Plumbing Official

may enter such building or premises at all reasonable times to

inspect the same or to perform any duty imposed upon the

Plumbing Official by this Code, provided that if such building

or premises is occupied, he shall first present proper


credentials and request entry. If such building or premises is

unoccupied, he shall first make a reasonable effort to locate

the owner and other persons having charge or control of the

building or premises and request entry. If such entry is

refused, the Plumbing Official shall have recourse to every

remedy provided by law to secure entry.

(b) When the Plumbing Official shall have first obtained a

proper inspection warrant or other remedy provided by law to

secure entry, no owner or occupant or any other persons having

charge, care or control of any building or premises shall fail

or neglect after proper request is made and herein provided, to

promptly permit entry therein by the Plumbing Official for the

purpose of inspection and examination pursuant to this Code.



to read as follows:

§4A-68. PLANS AND SPECIFICATIONS TO BE CHECKED BY PLUMBING

OFFICIAL. Repealed.

The plans and specifications and all information filed by

an applicant for a plumbing permit shall be carefully checked by

the Plumbing Official to ascertain that the same comply with and

meet the minimum requirement necessary to safeguard life and

limb, health, property and the public welfare, as well as the


requirements of this subchapter and other applicable laws and

ordinances.



to read as follows:

§4A-69. ALTERNATE MATERIALS AND METHODS. Repealed.

The provisions of this Code are not intended to prevent the

use of any material or method of construction not specifically

prescribed by this Code, provided any such alternate has been

approved by the Plumbing Official. The Plumbing Official shall

approve any such alternate, provided he finds that the alternate

for the purpose intended is at least the equivalent of that

prescribed in this Code in quality, strength, effectiveness,

durability and safety. The Plumbing Official shall require that

sufficient evidence or proof be submitted to substantiate any

claim made regarding its use.



to read as follows:

§4A-70. STOP WORK ORDERS. Repealed.

Upon notice from the Plumbing Official, work on any system

that is being done contrary to the provisions of this Code or in

a dangerous, unhealthy or unsafe manner, shall immediately


cease. Such notice shall be in writing and shall be given to the

owner of the property or to the owner's agent, or to the person

doing the work and shall state the conditions under which work

may be resumed. Where an emergency exists, the Plumbing Official

shall not be required to give a written notice prior to stopping

the work.



to read as follows:

§4A-71. PERMITS. Repealed.

A person, firm or corporation shall not install, enlarge,

alter, repair, improve, remove, convert or replace any plumbing

work or cause the same to be done without first obtaining a

plumbing permit for such plumbing installation from the Plumbing

Official.



to read as follows:


§4A-81. MECHANICAL CODE ADOPTED.

(a) The Florida Mechanical Code, current edition as

mandated by the Florida Legislature, and published by the


Florida Building Commission, is hereby adopted by reference and






to read as follows:

§4A-82. MECHANICAL CODE APPENDICES ADOPTED. Repealed.

The following Appendices of the 1997 edition of the

Standard Mechanical Code are hereby adopted for use within the

town: Appendix A and Appendix C. All other appendices are

specifically deleted.



to read as follows:


§4A-83. FUEL GAS CODE ADOPTED.

(a) The Florida Fuel Gas Code, current edition as mandated

by the Florida Legislature, and published by the Florida

Building Commission, is hereby adopted by reference and





(c) The following appendices of the Florida Fuel Gas Code

are hereby adopted: Appendix A and Appendix B.



to read as follows:

§4A-84. GAS CODE APPENDICES ADOPTED. Repealed.

The following Appendices of the 1997 edition of the

Standard Gas Code are hereby adopted for use within the town:

Appendix A, Appendix D, and Appendix E. All other appendices

are specifically deleted.

SECTION 28. That Section 4A-94(a), Appendix A, of the Town


to read as follows:

§4A-94. STANDARDS AND SPECIFICATIONS.

(a) General standards. In all areas of special flood

hazard the standards set forth in ASCE 24-05 Flood Resistant

Design and Construction as well as the following provisions are

required:

(1) New construction and substantial improvements

shall be anchored to prevent flotation, collapse or lateral

movement of the structure.

(2) Manufactured homes shall be anchored to prevent

flotation, collapse or lateral movement. Methods of anchoring


may include, but are not limited to, use of over-the-top or

frame ties to ground anchors. This standard shall be in addition

to and consistent with applicable state requirements for

resisting wind forces.

(3) New construction and substantial improvements

shall be constructed with materials and utility equipment

substantially resistant to flood damage.

(4) New construction or substantial improvements

shall be constructed by methods and practices that minimize

flood damage.

(5) Electrical, heating, ventilation, plumbing, air

conditioning equipment, and other service facilities shall be

designed and/or located so as to prevent water from entering or

accumulating within the components during conditions of

flooding.

(6) New and replacement water supply systems shall be

designed to minimize or eliminate infiltration of flood waters

into the system.

(7) New and replacement sanitary sewage systems shall

be designed to minimize or eliminate infiltration of flood

waters into the systems and discharges from the systems into

flood waters.


(8) On-site waste disposal systems shall be located

and constructed to avoid impairment to them or contamination

from them during flooding.

(9) Any alteration, repair, reconstruction, or

improvements to a structure on which is in compliance with the

provisions of this article meet the requirements of new

construction as contained in this article.

* * *

SECTION 29. That Section 4A-123(a), Appendix A, of the

Town Code of the Town of Melbourne Beach, Florida, is hereby

amended to read as follows:

§ 4A-123. STRUCTURAL REQUIREMENTS.

(a) Major structures.

(1) Major structures shall conform to the state

minimum building code in effect in the jurisdiction.

(2) Major structures shall also be designed,

constructed, and located in compliance with National Flood

Insurance Program regulations as found in 44 C.F.R. Parts 59 and

60 or §§ 4A-85 through 4A-98 (flood damage prevention),

whichever is more restrictive.

(3) Major structures shall, at a minimum be designed

and constructed in accordance with the Florida Building Code,

utilizing a wind speed zone of 130 mile per hour 3-second


gust §1205 of the Standard Building Code, as required by Rule

9B-3.047, Florida Administrative Code, using a fastest mile-wind

velocity of 110 miles per hour.

(4) Foundation design and construction of a major

structure shall consider all anticipated loads resulting from a

100-year storm event, including wave, hydrostatic, and

hydrodynamic loads acting simultaneously with live and dead

loads. Erosion computations for foundation design shall account

for all vertical and lateral erosion and scour-producing forces,

including localized scour due to the presence of structural

components. Foundation design and construction shall provide

for adequate bearing capacity taking into consideration the

anticipated loss of soil above the design grade as a result of

localized scour. The erosion computations required by this

division (a)(4) do not apply landward of coastal construction

control lines which have been established or updated since June

30, 1980. Upon request, the Department of Natural Resources may

provide information and guidance as to those areas within the

Coastal Building Zone where the erosion and scour of a 100-year

storm event is applicable.



to read as follows:


§4A-141. BUILDING OFFICIAL TO ACT AS EX OFFICIO ELECTRICAL

INSPECTOR AND PLUMBING INSPECTOR. Repealed.

The Building Official shall also act as ex officio

Electrical Inspector and Plumbing Inspector of the town.



to read as follows:

§4A-142. PENALTY. Repealed.

(a) Whoever shall violate this chapter for which another

penalty has not been provided shall be fined not more than $500

or imprisoned for a term not exceeding 60 days, or both. Each

day any violation of any provision shall continue shall

constitute a separate offense.

(b) Violation of the provisions of §§ 4A-85 through 4A-98

or failure to comply with any of its requirements, including

violation of conditions and safeguards established in connection

with grants of variance or special exceptions, shall constitute

a misdemeanor. Any person who violates §§ 4A-85 through 4A-98 or

fails to comply with any of its requirements shall, upon

conviction thereof be fined not more than $500 or imprisoned for

not more than 30 days, or both, and, in addition, shall pay all

costs and expenses involved in the case. Each day such violation

continues shall be considered a separate offense. Nothing herein


contained shall prevent the town from taking such other lawful

action as is necessary to prevent or remedy any violation.



to read as follows:

§4A-145. BUILDING PERMITS REQUIRED; APPLICATION; EXPIRATION.

(a) Building permits required.

(1) No building or other structure shall be erected,

moved, added to, or structurally altered without a permit

therefor, issued by the Building Official. No building permit

shall be issued except in conformity with the provisions of this

chapter, except after written order from the Board of

Adjustments in the form of an administrative review, exception,

or variance as provided by this chapter.

(2) Every contractor or subcontractor shall, as a

condition to receiving a building permit and as required by

Section 440.10(1), Florida Statutes, show proof that he has

compensation for his employees pursuant to state workers'

compensation laws.

(3) The issuance of a permit upon plans and

specifications shall not prevent the Building Official from

thereafter requiring the correction of errors in those plans and

specifications or preventing the building operations from being


carried on thereunder when in violation of this chapter, or any

town ordinance.

(b) Application for building permit.

(a) (1) If the application structure is for a commercial

structure or an expansion of a commercial structure, the

applicant must follow additional procedures outlined in § 7A-

51. The Building Official can issue a building permit for

commercial structures only following procedures outlined in §

7A-51.

(b) (2) All applications for building permits for any

structure and its accessory buildings, shall be accompanied by a

scale drawing at a scale acceptable to the Building Official, in

duplicate showing the following:

(1) a. The actual dimensions and shape of the lot or

lots to be built upon, including the location and actual

boundaries of abutting watercourses and waterbodies;

(2) b. The exact sizes and locations on the lot of

buildings already existing, if any;

(3) c. The location and dimensions of the proposed

buildings or alterations;

(4) d. When applicable, the required parking spaces,

loading and unloading spaces, maneuvering space, and openings

for ingress and egress;


(5) e. When applicable, grading and drainage plans

showing any and all cuts, fills, and provisions for adequately

carrying off surface water on premises, plus provisions for any

surface water which would naturally flow over or through the

area;

(6) f. Such other information as lawfully may be

required by the Building Official, including existing or

proposed building or alteration; existing or proposed uses of

the building and land; the number of families, housekeeping

units, or rental units the building is designed to accommodate;

conditions existing on the lot; and such other matters as may be

necessary to determine conformance with, and provide for the

enforcement of this chapter; and

(7) g. Attach proof that he has secured

compensation, required by Section 440.10(1), Florida Statutes,

for his employees as provided under the state Workers'

Compensation laws.

(c) (3) One copy of the plans shall be returned to the

applicant by the Building Official after he shall have marked

such copy either as approved or disapproved and attested same by

his signature on such copy. The original, similarly marked,

shall be retained by the Building Official.


(c) Expiration of building permits. If the work described

in any building permit has not begun within 90 days from the

date of issuance thereof, the permit shall expire. If the work

described in any building permit has not been substantially

completed within six months of the issuance thereof, the permit

approved shall expire.



to read as follows:

§4A-146. CERTIFICATE OF OCCUPANCY REQUIRED. Repealed.

No land or building or part thereof hereafter erected or

altered in its use or structure shall be used or occupied until

the Building Official shall have issued a certificate of

occupancy stating that such land, building, or part thereof, and

the proposed use thereof are found to be in conformity with the

provisions of this chapter. Within three days after

notification that a building or premises, or part thereof, is

ready for occupancy or use, it shall be the duty of the Building

Official to make a final inspection thereof and to issue a

certificate of occupancy if the land, building, or part thereof

and the proposed use thereof are found to conform with the

provisions of this chapter; or, if such certificate is refused,

to state such refusal in writing with the cause. Before a


certificate of occupancy is issued, all plumbing and electrical

wiring shall be 100% completed and approved.



to read as follows:

§4A-147. COMPLIANCE WITH STANDARD BUILDING CODE. Repealed.

No certificate of occupancy shall be issued unless

buildings have been constructed compliance with the requirements

of the Standard Building Code.


(a) In the event that any term, provision, clause,

sentence or section of this Ordinance shall be held by a court

of competent jurisdiction to be partially or wholly

unenforceable or invalid for any reason whatsoever, any such

invalidity, illegality, or unenforceability shall not affect any

of the other or remaining terms, provisions, clauses, sentences,

or sections of this Ordinance, and this Ordinance shall be read

and/or applied as if the invalid, illegal, or unenforceable

term, provision, clause, sentence, or section did not exist.

(b) In interpreting the provisions of this Ordinance,

the following rules and symbols shall apply:

(1) Words underlined are additions to existing

text.


(2) Words stricken through are deletions from

existing text.

(3) Asterisks (* * *) indicates a deletion from

the Ordinance of text existing in the Code of Ordinances. It is

intended that the text in the Code of Ordinance denoted by the

asterisks and not set forth in this Ordinance shall remain

unchanged from the language existing prior to adoption of this

Ordinance.

SECTION 36. Ordinances and Resolutions in Conflict. All

ordinances or resolutions or parts thereof that may be

determined to be in conflict herewith, except portions of the


SECTION 37. Effective Date. This Ordinance shall become

effective upon adoption.

PASSED by the Town Commission of the Town of Melbourne Beach on first reading on the ___ day of February, 2008, and ADOPTED by the Town Commission of the Town of Melbourne Beach, Florida, on final reading on the ___ day of March, 2008.


ATTEST: (TOWN SEAL) _______________________ Lenore R. Milan, CMC, Town Clerk

Melb.Bch/Stomwater.ord 3/11/08 Page 1 of 16


AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, RELATING TO STORMWATER; MAKING FINDINGS; AMENDING CHAPTER 27 OF THE TOWN CODE OF ORDINANCES; ADDING ARTICLE II, SECTIONS 27-20 THROUGH 27-36 RELATING TO ILLEGAL AND ILLICIT DISCHARGES AND CONNECTIONS; PROVIDING A SHORT TITLE, OBJECTIVES, AND DEFINITIONS; PROVIDING FOR APPLICABILITY AND COMPATIBILITY WITH OTHER REGULATIONS; PROVIDING FOR SEVERABILITY AND ULTIMATE RESPONSIBILITY; REQUIRING CONTROL OF POLLUTANT CONTRIBUTIONS FROM INTERCONNECTED MUNICIPAL SEPARATE STORM SEWER SYSTEMS; SETTING FORTH PROHIBITIONS; REGULATING STOMRWATER DISCHARGES FROM COMMERCIAL, INDUSTRIAL, OR CONSTRUCTION ACTIVITIES TO THE MUNICIPAL SEPARATE STORM SEWER SYSTEM OR REGULATED WATERS; SETTING FORTH AUTHORIZED EXEMPTIONS AND EMERGENCY CONDITIONS; REQUIRING INSPECTION AND MONITORING FOR COMPLIANCE; PROVIDING REPORTING REQUIREMENTS; PROVIDING FOR VIOLATION, ENFORCEMENT, AND ASSESSMENT OF A PENALTY; PROVIDING A SCHEDULE OF PENALTIES AND PROVIDING FOR THE USE OF PENALTY AWARDS; PROVIDING FOR INTERPRETATION; AND PROVIDING AN EFFECTIVE DATE.

WHEREAS, the Town Commission has determined that it is in the Town’s best interest to

regulate non-stormwater discharges to the municipal storm sewer system to the maximum extent

practicable as required by Federal and Florida law; and

WHEREAS, the Town Commission has determined that it is in the Town’s best interest to

establish methods for controlling the introduction of pollutants into the Town’s municipal storm

sewer system in order to comply with requirements of the National Pollutant Discharge

Elimination System (NPDES) permit; and

WHEREAS, the Town Commission finds that this Ordinance will promote the public health,

safety, welfare, economic order and public interest.



SECTION 1. That the Town Code of Melbourne Beach, Florida, is hereby amended by

adding a section, to be numbered 27-20, which said section read as follows:

ARTICLE III. ILLICIT DISCHARGE AND CONNECTION § 27-20. Short title. This article shall be known and may be cited as “The Town of Melbourne Beach Illicit

Discharge (IDO) Code.”



§ 27-21. Objectives.

(a) The purpose of this article is to provide for the health, safety, and general welfare

of the citizens of the Town of Melbourne Beach through the regulation of non-stormwater

discharges to the municipal separate storm sewer system to the maximum extent practicable as

required by federal and state law. This code establishes methods for controlling the introduction

of pollutants into the municipal separate storm sewer system in order to comply with requirements

of the National Pollutant Discharge Elimination System (NPDES) permit process.

(b) The objectives of this article are:

(1) To regulate the contribution of pollutants to the municipal separate storm

sewer system by stormwater discharges by any user;

(2) To prohibit illicit connections and discharges to the municipal separate storm

sewer system; and

(3) To establish legal authority to carry out all inspection, surveillance and

monitoring procedures necessary to ensure compliance with this article.



§ 27-22. Definitions.


For the purposes of this article, the following terms, phrases, words, and their derivations

shall have the meaning given herein:

Authorized enforcement agency means the department within the Town of Melbourne

Beach that is designated by the town manager as having the responsibility to enforce this article.

Best Management Practices or BMPs means schedules of activities, prohibitions of

practices, general good housekeeping practices, pollution prevention and educational practices,

maintenance procedures, and other management practices to prevent or reduce the discharge of

pollutants directly or indirectly to stormwater, receiving waters, or stormwater conveyance

systems. BMPs also include treatment practices, operating procedures, and practices to control

site runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials storage.

Clean Water Act or CWA means the federal Water Pollution Control Act (33 U.S.C. § 1251

et seq.), and any subsequent amendments thereto.

Construction activity means any on-site activity which will result in the creation of a new

stormwater discharge, including the building, assembling, expansion, modification or alteration of

the existing contours of the site, the erection of buildings or other structures, or any part thereof,

or land clearing.

Hazardous materials means any material, including any substance, waste, or combination

thereof, which because of its quantity, concentration, or physical, chemical, or infectious

characteristics may cause, or significantly contribute to, a substantial present or potential hazard

to human health, safety, property, or the environment when improperly treated, stored,

transported, disposed of, or otherwise managed.

Illicit Discharge or Illegal Discharge means any discharge to the town’s municipal separate

storm sewer system or to waters of the United States which is not entirely of stormwater, unless

exempted pursuant to section 27-28, or the discharge to the town’s municipal storm separate

sewer system or to waters of the United States which is not in compliance with Federal, Florida,

or local permits.


Illicit Connection means either of the following: 1) Any drain or conveyance, whether on

the surface or subsurface, which allows an illegal or illicit discharge to enter the storm drain

system including but not limited to any conveyances that allow any non-storm water discharge

including sewage, process wastewater, and wash water to enter the storm drain system and any

connections to the storm drain system from indoor drains and sinks, regardless of whether said

drain or connection had been previously allowed, permitted, or approved by an authorized

enforcement agency; or 2) Any drain or conveyance connected from a commercial or industrial

land use to the storm drain system which has not been documented in plans, maps, or equivalent

records and approved by an authorized enforcement agency.

Industrial Activities means activities at facilities identified by the United States

Environmental Protection Agency as requiring an NPDES stormwater permit in accordance with

40 CFR 122.26(b)(14) or amendments thereto, or any unit operation, complex, area or multiple of

unit operations that produce, generate, handle, process or cause to be processed, any materials

which may cause water pollution.

Municipal Separate Storm Sewer System means a conveyance, storage area or system of

conveyances and storage areas (including, but not limited to, roads or streets with drainage

systems, catch basins, curbs, gutters, ditches, manmade channels, storm drains, treatment

ponds and other structural BMPs) owned and operated by a local government that discharge to

waters of the United States or to other municipal separate storm sewer systems, that is designed

solely for collecting, treating or conveying stormwater and that is not part of publicly owned

treatment works (POTW) as defined by 40 CFR 122.2 or any amendments thereto.

National Pollutant Discharge Elimination System (NPDES) stormwater discharge permit

means a permit issued by the Florida Department of Environmental Protection (FDEP) that

authorizes the discharges of pollutants to waters of the United States.

Non-stormwater discharge means any discharge to the storm drain system that is not

composed entirely of stormwater.


Person means an individual, corporation, governmental agency, business trust, estate,

trust, partnership, association, two (2) or more persons having a joint or common interest, or any

other legal entity.

Pollutant means anything that causes or contributes to pollution. Pollutants may include,

but are not limited to paints, varnishes, and solvents; oil and other automotive fluids; non-

hazardous liquid and solid wastes and yard wastes; refuse, rubbish, garbage, litter, or other

discarded or abandoned objects, ordnances, and accumulations, so that same may cause or

contribute to pollution; floatables; pesticides, herbicides, and fertilizers; hazardous substances

and wastes; sewage, fecal coliform and pathogens; dissolved and particulate metals; animal

wastes; wastes and residues that result from constructing a building or structure; and noxious or

offensive matter of any kind.

Receiving bodies of water means any water bodies, watercourses and wetlands into which

surface waters flow.

Stormwater management system means the designed features of the property that collect,

convey, channel, hold, inhibit or divert the movement of stormwater.

Stormwater means any surface flow, runoff, and drainage consisting entirely of water from

any form of natural precipitation, and resulting from such precipitation.

Watercourse means any natural or artificial stream, creek, channel, ditch, canal,

waterway, gully, ravine or wash in which water flows in a definite direction, either continuously or

intermittently, and which has a definite channel, bed or banks.

Water body mean any natural or artificial pond, lake, reservoir, or other area which

ordinarily or intermittently contains water and which has a discernible shoreline.



§ 27-23. Applicability.


This article shall apply to all water entering the municipal separate storm sewer system on

any developed and undeveloped lands unless explicitly exempted by this article or an authorized

enforcement agency.



§ 27-24. Compatibility with other regulations.

This article is not intended to modify or repeal any other ordinance, rule, regulation, or

other provision of law. The requirements of this ordinance are in addition to the requirements of

any other ordinance, rule, regulation, or other provision of law, and where any provision of this

article imposes restrictions different from those imposed by any other ordinance, rule, regulation,

or other provision of law, whichever provision is more restrictive or imposes higher protective

standards for human health or the environment shall control.



§ 27-25. Severability.

The provisions of this article are hereby declared to be severable. If any word, provision,

clause, sentence, or paragraph of this article or the application thereof to any person,

establishment, or circumstances shall be held invalid, such invalidity shall not affect the other

provisions or application of this ordinance.



§ 27-26. Ultimate responsibility.

The standards set forth herein and promulgated pursuant to this article are minimum

standards; therefore this article does not intend nor imply that compliance by any person will

ensure that there will be no contamination, pollution, nor unauthorized discharge of pollutants.




§ 27-27. Control of pollutant contributions from interconnected municipal separate storm

sewer systems.

Interconnected municipal separate storm sewer systems, including municipal separate

storm sewer systems not owned by the town, shall be controlled so that they do not impair the

operation of or contribute to the failure of the receiving municipal separate storm sewer systems

to meet any applicable local, state, or federal law or regulation. Owners of sections of an

interconnected municipal separate storm sewer systems shall be responsible for the quality within

their portion of the system and shall coordinate with the owners of the downstream segments.



§ 27-28. Prohibitions.

(a) Illicit/Illegal Discharges. No person shall throw, drain, or otherwise discharge,

cause, or allow others under its control to throw, drain, or otherwise discharge into the municipal

separate storm sewer systems any pollutants or waters containing any pollutants, other than

stormwater, whether such discharges occur through piping connections, runoff, exfiltration,

infiltration, seepage or leaks. Polluting matter includes, but is not limited to, the following:

(1) petroleum products, including, but not limited to oil, gasoline, grease;

(2) solid waste (as defined in s. 403.702, F.S.);

(3) paints;

(4) steam cleaning waste;

(5) pesticides, herbicides or fertilizers;

(6) degreasers, solvents;

(7) sanitary sewage;

(8) chemically treated cooling water;


(9) antifreeze and other automotive products;

(10) lawn clippings, leaves, branches, etc.;

(11) animal carcasses;

(12) recreational vehicle waters;

(13) dyes;

(14) construction materials;

(15) any liquids in quantity or quality that are capable of causing a violation of the

town’s NPDES stormwater permit; and

(16) Solids in such quantities or of such size capable of causing interference or

obstruction to the flow of the town’s separate storm sewer system.

(b) Illicit Connections. (1) No person may maintain, use or establish any direct or indirect connection

to any storm sewer owned by the town that results in any discharge in violation of any provision of

federal, state, city of other laws or regulations.

(2) This subsection is retroactive, and applies to illicit connections made prior to

the effective date of the article from which this subsection is derived; regardless of whether made

under a permit or other authorization, or whether permissible under laws or practices applicable

or prevailing at the time the connection was made.

(3) A person is considered to be in violation of this article if the person connects

a line conveying sewage to the municipal separate storm sewer system, or allows such a

connection to continue.

(c) Violation of Permits. Any discharge into the stormwater system of the town in

violation of any Federal, state, county, municipal or other governmental law, rule, regulation or

permit is prohibited, except those discharges set forth in this section or as in accordance with a

valid NPDES permit.




§ 27-29. Stormwater discharges from commercial, industrial or construction activities to

the municipal separate storm sewer system or regulated waters.

(a) Stormwater from areas of any commercial activity, industrial activity or construction

activities shall be controlled, treated and managed on-site using best management practices so

as not to cause an illicit or illegal discharge to the town’s municipal separate storm sewer system

or regulated waters.

(b) All erosion, pollutant, and sediment controls required by the town code, or by any

applicable local, state, or Federal permit, including elements of a stormwater pollution prevention

plan required under a NPDES permit and the town’s land development regulations in appendix A

of the town code, shall be properly implemented, installed, operated, and maintained.

(c) Authorized discharges to the town’s municipal separate storm sewer system shall

be controlled so that they do not impair the operation of the town’s municipal separate storm

sewer system or contribute to the failure of the town’s municipal separate storm sewer system to

meet any applicable local, state, or federal law or regulation.

(d) Authorized discharges to regulated waters shall be controlled so that they do not

adversely impact the quality or beneficial uses of those waters or result in violation of any

applicable local, state, or Federal law or regulation.

(e) Any person who has been issued an NPDES permit authorizing discharges to the

municipal separate storm sewer systems shall submit a complete copy of the permit to town

building official by not later than June 30, 2008, (thirty (30) days after the effective date of this

article), or within thirty (30) days after the issuance of a permit.



§ 27-30. Authorized exemptions.


(a) The commencement, conduct or continuance of any illicit or illegal discharge to the

storm drain system is prohibited except as follows:

(1) water line flushing;

(2) flushing of reclaimed water lines;

(3) street cleaning;

(4) construction dust control;

(5) landscape irrigation;

(6) diverted stream flows;

(7) rising ground waters;

(8) foundation and footing drains;

(9) uncontaminated swimming pool discharges;

(10) uncontaminated ground water infiltration (as defined at 40

C.F.R.35.205(20));

(11) uncontaminated pumped ground water;

(12) discharges from potable water sources;

(13) air conditioning condensate;

(14) irrigation water;

(15) springs;

(16) lawn watering;

(17) individual residential car washing;

(18) flows from riparian habitat and wetlands; and

(19) discharges or flows from emergency fire fighting activities and emergency

response activities done in accordance with an adopted spill response/action plan.

(b) The prohibitions contained in this article shall not apply to any non-stormwater

discharge permitted under an NPDES permit, waiver, or waste discharge order issued to the

discharger and administered under the authority of the Florida Department of Environmental


Protection, provided that the discharger is in full compliance with all requirements of the permit,

waiver, or order and other applicable laws and regulations, and provided that written approval has

been granted for any discharge to the storm drain system.



§ 27-31. Emergency conditions.

(a) Not withstanding any other provisions of this article, whenever the town or an

authorized enforcement agency determines that conditions or activities requiring immediate

action to protect public health, safety or welfare, or to provide for compliance with these

regulations, rules promulgated hereunder, or town approved construction plans, town forces are

authorized to enter at a reasonable time in or upon any property for the purpose of testing,

inspecting, investigating, measuring, sampling and correcting such emergency conditions.

Failure to admit personnel responding to emergency conditions, as determined and authorized by

the authorized enforcement agency, shall constitute a separate violation of this article.

(b) Suspension due to illicit discharges in emergency situations. The town or other

authorized enforcement agency may, without prior notice, suspend municipal separate storm

sewer system discharge access to a person when such suspension is necessary to stop an

actual or threatened discharge which presents or may present imminent and substantial danger

to the environment, or to the health or welfare of persons, or to the municipal separate storm

sewer system or waters of the United States. If the violator fails to comply with a suspension

order issued in an emergency, the town or other authorized enforcement agency may take such

steps as deemed necessary to prevent or minimize damage to the municipal separate storm

sewer systems or waters of the United States, or to minimize danger to persons.

(c) Suspension due to the detection of illicit discharge. Any person discharging to the

municipal separate storm sewer system in violation of this article may have their municipal

separate storm sewer system access terminated if such termination would abate or reduce an


illicit discharge. The town or other authorized enforcement agency will notify a violator of the

proposed termination of its municipal separate storm sewer system access. The violator may

petition the town or other authorized enforcement agency for a reconsideration and hearing. It is

considered an offense of this article if the person reinstates municipal separate storm sewer

systems access to premises terminated pursuant to this section without the prior approval of the

authorized enforcement agency.



§ 27-32. Inspection and monitoring for compliance.

Town personnel and town agents shall be granted access for inspection of facilities

discharging or suspected of discharging to the town’s municipal separate storm sewer system or

waters of the United States in order to effectuate the provisions of this article and to investigate

violations or potential violations of any of the terms herein. All structures and processes which

allow discharges to the town’s municipal separate storm sewer system, as well as records

connecting them, shall be made accessible to town personnel and town agents for this purpose.



§ 27-33. Reporting requirements.

Illicit discharges to the municipal separate storm sewer system are prohibited. Any person

owning or occupying a property, premise, or facility who has knowledge of a discharge of

pollutants from said property, premise, or facility or other type of evidence which might result in a

violation of the prohibitions found in section 27-28 of this article shall immediately take action to

abate the discharge of pollutants, and shall notify the authorized enforcement agency within

twenty-four (24) hours of the discharge of pollutants. The initial notification may be by telephone,

but the person responsible shall submit a written report within seventy-two (72) hours of

discovery. The written report shall include a description of the discharge volume, content,


frequency, discharge point location to the municipal separate storm sewer system, measures

taken or to be taken to terminate the discharge, and the name, address and telephone number of

the person who may be contacted for additional information. Hazardous materials discharges

shall be reported to the town, the Brevard County Public Safety Office, the Brevard County Health

Department, and the Florida Department of Environmental Protection.



§ 27-34. Violations, enforcement, and penalties. (a) Notice of violation. Whenever the town or an authorized enforcement agency finds

that a person has violated a prohibited act or failed to meet a requirement of this article, the town

or the authorized enforcement agency may order compliance by written notice of violation to the

responsible person. Such notice may require without limitation:

(1) The elimination of illicit connections or discharges.

(2) The issuance of cease and desist orders.

(3) The abatement or remediation of storm water pollution or contamination

hazards and restoration of any affected property.

(4) The implementation of source control or treatment BMPs.

If abatement of a violation and/or restoration of affected property is required, the notice shall set

forth a deadline within which such remediation or restoration must be completed. Said notice

shall further advise that, should the violator fail to remediate or restore within the established

deadline, the work may be done by a designated governmental agency or a contractor and the

expenses thereof shall be charged to the violator.

(b) Appeal of notice of violation. Any person receiving a notice of violation may appeal

the determination of the authorized enforcement agency. The notice of appeal must be received

within ten (10) days from the date of the notice of violation. Hearing on the appeal shall be before


the town code enforcement board and shall take place within thirty (30) days from the date of

receipt of the notice of appeal. The decision of the town shall be final.

(c) In addition to any fines that may be imposed, any person responsible for illicit or

illegal discharges, or noncompliance with BMPs at industrial and/or construction sites, and who

fails to correct any prohibited condition or discontinue any prohibited activity at the order of the

authorized enforcement agency shall be liable to the town for the expenses incurred in abating

pollution, including expenses incurred in testing, measuring, sampling, collecting, removing,

treating, and disposing of the polluting materials and preventing further noncompliance and/or

illicit discharges.

(d) Persons responsible for violation of this article shall be liable for all costs incurred

by the town in sampling, analyzing and/or monitoring the discharge, together with all state and/or

Federal fines imposed as a result of the discharge and cost of removing, remedying or properly

treating the discharge.

(e) Any person found in violation and/or who fails to comply with the requirements of

any provision of the article shall, without limitation on the town’s legal recourse, be subject to

prosecution before the town’s Code Enforcement Board. Each day of violation shall constitute a

separate violation.

(f) The town may elect to take any or all of the above remedies concurrently, and the

pursuit of one shall not preclude the pursuit of another.



§ 27-35. Schedule of penalties. A person who has been convicted of an offense under this article

may be required to pay a fine in addition to any punishment of incarceration as described in s. 1-99.

Fines for designated violations shall not exceed:

Section Description Penalty

27-28 Failure to comply with IDO prohibitions $200 per day/per


occurrence

27-29 (a)(c)(d)(e)

Failure to comply with IDO industrial activities and construction site requirements.

$125 per day/per occurrence

27-33 Failure to comply with IDO reporting requirements.

$125 per occurrence

27-34 Failure to comply with IDO site remediation and monitoring requirements


27-29(b) Failure to comply with IDO erosion and sedimentation control measures




§ 27-36. Use of penalty awards.

Any money recovered by the town in an action against any person who has caused

pollution in the town in violation of this article or state law shall be used for water quality

improvement projects in the town.

SECTION 18. Interpretation Clause. In interpreting the provisions of this Ordinance, the

following rules and symbols shall apply:

(1) Words underlined are additions to existing text.

(2) Words stricken through are deletions from existing text.

(3) Asterisks (* * *) indicates a deletion from the Ordinance of text existing in the Code

of Ordinances. It is intended that the text in the Code of Ordinance denoted by the asterisks and not

set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this

Ordinance.

SECTION 19. Effective Date. That this ordinance shall become effective June 1, 2008.

This Ordinance was passed on first reading at a regular meeting of the Town Commission

on the 19th day of March, 2008, and adopted on the second and final reading at a regular


meeting of the Town Commission on the 16th day of April, 2008.

TOWN OF MELBOURNE BEACH, FLORIDA, a Florida Municipal Corporation

By:___________________________ William G. Stacey, Mayor ATTEST: (TOWN SEAL) __________________________ Lenore Milan, CMC, Town Clerk Ordinance No. 2008-04

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AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA RELATING TO PUBLIC SERVICE TAXATION; MAKING FINDINGS; AMENDING SECTIONS 14-27, 14-28, 14-30, 14-31, AND 14-32, MELBOURNE BEACH TOWN CODE; REPEALING SECTION 14-29, MELBOURNE BEACH TOWN CODE; ENACTING A PUBLIC SERVICE TAX ON WATER SERVICE; REPEALING REFERENCES TO ASSESSMENT OF A PUBLIC SERVICE TAX ON TELECOMMUNICA-TIONS SERVICES; INCREASING LEVIES; REVISING EXEMPTIONS FROM TAXATION; REVISING LANGUAGE RELATING TO ASSESSMENT OF INTEREST AND PENALTIES; READOPTING AND RECONFIRMING ORDINANCE NO. 98-02, RELATING TO PUBLIC SERVICE TAXES; REPEALING CERTAIN INCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING A SEVERABILITY/ INTERPRETATION CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, in 2007, the Florida Legislature adopted Chapter 2007-321, Laws of Florida, and the voters of the State of Florida adopted amendments to Art. VII, §6, Florida Constitution of 1968 proposed by Senate Bill 2D (popularly known on the January 29, 2008 ballot as “Amendment 1”), all in an effort to reduce taxes on real estate; WHEREAS, the Town of Melbourne Beach is committed to implementing the desires of the electorate to cut taxes on real estate; WHEREAS, to provide for a balanced budget and to implement budget cuts to realize the property tax cuts called for, the Town Commission deems it necessary to adopt this Ordinance;

WHEREAS, the Town Commission finds that this Ordinance will promote the public health, safety, welfare, and economic order of the community and is in the public interest;

WHEREAS, all conditions precedent to the effectiveness of this levy have been satisfied by the Town; WHEREAS, this Ordinance is adopted pursuant to authority provided for in Article VII, §1(a) and §9(a), Florida Constitution of 1968, (no tax shall be levied by a municipality, except as may be permitted by general law); Sections 166.231, 166.232, 166.233, and 166.234, Florida Statutes (2007)(general law providing for the levy of a public service tax); Article VIII, §2, Florida Constitution of 1968 (municipal home rule); and Section 166.021, Florida Statutes (1997) (implementation of municipal home rule), inter alia; WHEREAS, on May 22, 2008, the Town notified the Florida Department of Revenue, in writing by certified U.S. first class U.S. mail, of the levy to be effectuated by this Ordinance; and WHEREAS, said notification to the Florida Department of Revenue was made upon forms prescribed by the aforesaid Department.

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BE IT ENACTED by the Town of Melbourne Beach, Florida: SECTION 1. That Section 14-27 of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows: § 14-27. Definitions. For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

Fuel adjustment charge means and refers to all increases in the cost of utility services to the ultimate consumer resulting from an increase in the cost of fuel to the utility subject to October 1, 1973. (Legislative Authority: §166.231(1)(b), Fla.Stat. (2007).) Public service tax means and refers to the tax authorized by Sections 166.231, 166.232, 166.233, and 166.234, Florida Statutes, on the purchase of: 1) electricity; 2) metered natural gas; 3) metered or bottled liquefied petroleum gas; 4) metered or bottled manufactured gas; and 5) water service, said purchases occurring within the municipal limits of the town. (Legislative Authority: §166.231(1)(a), Fla.Stat. (2007).) Purchase of electricity means and refers to the purchase of electricity by the person who will consume it within the town. (Legislative Authority: §166.231(1)(a), Fla.Stat. (2007).) Purchase means and refers to every act or transaction whereby possession of, utilization of, or control over electricity, metered natural gas, metered or bottled liquefied petroleum gas, metered or bottled manufactured gas, or water service, which are subject to a public service tax, becomes vested in the purchaser within the corporate limits of the town for which payment is made pursuant to a duty and obligation thereof. Seller means and refers to any person rendering electricity, metered natural gas, metered or bottled liquefied petroleum gas, metered or bottled manufactured gas, or water service, which are subject to a public service tax, to a purchaser.

SECTION 2. That Section 14-28 of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows: Sec. 14-28. Public service tax on electricity, metered natural gas, metered or bottled liquefied petroleum gas, metered or bottled manufactured gas, and water service. (a) There is hereby levied by the town within the corporate limits of the town on each sale of electricity, metered natural gas, metered or bottled liquefied petroleum gas, metered or bottled manufactured gas, and water service, a public service tax on the charge made by the seller thereof, which tax in every case shall be paid by the purchaser (for the use of the town) at the time of paying the charge therefore. Said tax shall be computed on the basis of 9.5% of the payments received by the seller from the purchaser for the purchase of said service. (b) It shall be the duty of every seller of electricity, metered natural gas, metered or bottled liquefied petroleum gas, metered or bottled manufactured gas, or water service, to collect from the purchaser for the use of the town, the tax levied by this article at the time of collecting the selling price for each transaction. All such taxes levied and collected during the preceding

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month shall be reported and paid over on or before the fifteenth day of each calendar month to the town manager. (Legislative Authority: §166.231(7), Fla.Stat. (2007).) (c) It shall be unlawful for any seller to collect the price of any purchase of electricity, metered natural gas, metered or bottled liquefied petroleum gas, or metered or bottled manufactured gas, or water service, without at the same time, collecting the tax levied by this article in respect to such purchase(s) unless such seller shall elect to assume and pay such tax without collecting such tax from the purchaser. (Legislative Authority: §166.231(7), Fla.Stat. (2007).) SECTION 3. That Section 14-29 of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows:

Sec. 14-29. Taxable telecommunication services; Tax levied. (Repealed). (Legislative Authority: Chap. 2000-260, §§36, 38, 39, and 58, Laws of Fla. SECTION 4. That Section 14-31 of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows: Sec. 14-31. Keeping of records. (a) Every seller of electricity, metered natural gas, metered or bottled liquefied petroleum gas, metered or bottled manufactured gas, or water service shall keep complete records showing all purchases within the town of such commodities or services, which records shall show the price charged upon each purchase and the date thereof, all as set forth by Section 166.234, Florida Statutes. The records shall be kept for inspection by the duly authorized agents of the town during the seller's normal business hours at the official location of the seller's books and records. The duly authorized agents of the town shall have the right, power, and authority to make such transcripts thereof during such times as they may desire. Records shall be retained by the seller for the statutorily required period. (Legislative Authority: §166.234, Fla.Stat. (2007).) (b) Each meter or measured service of electricity, metered natural gas, metered or bottled liquefied petroleum gas, metered or bottled manufactured gas or telephone call shall constitute a separate purchase. SECTION 5. That Section 14-32 of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows: Sec. 14-32. Exemption from tax. (a) General. The United States of America, the State of Florida, and all counties, school districts, and municipalities of the state, public bodies exempted by law or court order, political subdivisions and agencies, boards, commissions and authorities thereof, and any recognized church in this state for use exclusively for church purposes, are hereby exempted from payment of the tax levied by this article. A recognized church that claims one of the foregoing exemptions to be entitled to the same must certify to the seller that it qualifies for the exemption, which certification may encompass all purchases after a specified date or other multiple purchases. A seller accepting the certification required by this subsection is relieved of the obligation to collect and remit tax, and a seller is not required to collect tax from such an exempt governmental body. A recognized church that claims an exemption as set forth in this sub-section shall certify to the seller that said purchaser qualifies for the exemption, which exemption

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may encompass all purchases after a specified date or other multiple purchases. Copies of said certifications and consumer certifications of exemption shall be maintained by the seller and made available upon request to the town. (Legislative Authority: §166.231(5) and (9), Fla.Stat. (2007).) (b) Fuel adjustment charge. The public service tax shall not be levied against any fuel adjustment charge applicable to the purchase of electricity, metered natural gas, metered or bottled liquefied petroleum gas, or metered or bottled manufactured gas, or water service; provided, that such charge shall be separately stated on each bill issued by a seller to a purchaser. (Legislative Authority: §166.231(1)(b), Fla.Stat. (2007).) SECTION 6. That Section 14-33 of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows: Sec. 14-33. Late return of tax payments by seller; Interest; Penalties. (a) Subject to the time limitations and requirements of s. 166.234, Florida Statutes, interest and penalties may be charged by the town to the seller upon any late payment of tax revenues or filing of a required return. No interest or penalty shall be passed thru or passed along to consumer purchasers. (b) No penalty shall be assessed against a seller, unless the town manager determines the existence of willful neglect, willful negligence, or fraud. Said determination may be appealed to the town commission, if said appeal is filed within thirty (30) days of the date of the town manager's determination. Penalties may be assessed at a rate of five percent (5%) per month of the delinquent tax, not to exceed a total penalty of 25 percent, except that in no event shall the penalty for failure to file a return be less than $15. In the case of a fraudulent return or a willful intent to evade payment of the tax, the seller making such fraudulent return or willfully attempting to evade payment of the tax, shall be liable for a specific penalty of 100 percent (100%) of the tax. (c) Interest may be charged at a rate of one percent (1%) per month of the delinquent tax from the date that the tax was due until paid. (d) Interest and penalties shall be computed on the net tax due after application of any overpayments, and shall be subject to compromise as provided by law. (Legislative Authority: §166.234(4), (5), (7), and (8), Florida Statutes (2007).) SECTION 7. All provisions of Ordinance No. 98-02, originally adopting public service taxes, are hereby reaffirmed and readopted, but modified as provided in this Ordinance.


(a) In the event that any term, provision, clause, sentence or section of this Ordinance shall be held by a court of competent jurisdiction to be partially or wholly unenforceable or invalid for any reason whatsoever, any such invalidity, illegality, or unenforceability shall not affect any of the other or remaining terms, provisions, clauses, sentences, or sections of this Ordinance, and this Ordinance shall be read and/or applied as if the invalid, illegal, or unenforceable term, provision, clause, sentence, or section did not exist.

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(b) In interpreting the provisions of this Ordinance, the following rules and symbols shall apply: (1) Words underlined are additions to existing text. (2) Words stricken through are deletions from existing text. (3) Asterisks (* * *) indicates a deletion from the Ordinance of text existing in the Code of Ordinances. It is intended that the text in the Code of Ordinance denoted by the asterisks and not set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance. (c) It is the legislative intent of the Town Commission that notes marked "Legislative Authority" shall not be interpreted to be a material part of this Ordinance but are included for ease of reference by the reader of this Ordinance. SECTION 9. Ordinances and Resolutions in Conflict. All ordinances or resolutions or parts thereof that may be determined to be in conflict herewith, except portions of the Comprehensive Plan, are hereby repealed. SECTION 10. Effective Date. Pursuant to Section 166.233(2)(a), Florida Statutes (2007), a public service tax levy may only become effective on the subsequent January 1, April 1, July 1, or October 1. Further, no levy may become effective until 120 days after the municipality notifies the Florida Department of Revenue of same. Consequently, this Ordinance and Sections 3., 6., 8. 9., and 10., of this Ordinance shall become effective upon adoption, except that the amendments to Sections 1., 2., 4., 5., and 7., shall not become effective until October 1, 2008. PASSED by the Town Commission of the Town of Melbourne Beach on first reading on the 21st day of May, 2008, and ADOPTED by the Town Commission of the Town of Melbourne Beach, Florida, on final reading on the 18th day of June, 2008. TOWN OF MELBOURNE BEACH, FLORIDA ATTEST: BY: __________________________________ ________________________________________ Town Clerk Tina Hoffkins Mayor William G. Stacey


AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, RELATING TO TRAFFIC CONTROL; MAKING FINDINGS; AMENDING SECTION 30-43.1, TOWN CODE OF ORDINANCE OF THE TOWN OF MELBOURNE BEACH, FLORIDA; INCREASING PARKING FINES FOR CERTAIN ENUMBERATED OFFENSES; PROVIDING FOR SEVERABILITY AND INTERPRETATION; PROVIDING FOR THE REPEAL OF INCONSISTENT RESOLUTIONS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, pursuant to Section 316.008(1)(a), Florida Statutes, the regulation or prohibition of parking, stopping, or standing of motor vehicles is an area of traffic enforcement which local government are permitted to regulate by ordinance; WHEREAS, the Town of Melbourne Beach has elected to regulate stopping, standing, and parking of motor vehicles pursuant to Section 30-42, Melbourne Beach Code of Ordinances; WHEREAS, due to inflation and a re-evaluation of the costs of enforcing motor vehicle parking, stopping, or standing regulations, the Town Commission has determined that it is in the public interest to increase the penalty for improperly parking, stopping, or standing of a motor vehicle within the Town; WHEREAS, the Town Commission has determined that the current penalty for the improper or illegal parking, stopping, or standing of a motor vehicle does not provide a proper deterrent to violators; and WHEREAS, the Town Commission has determined that the current penalty for the improper or illegal parking, stopping, or standing of a motor vehicle has not been evaluated since 1995, and the effects of inflation have caused the current penalty to be insufficient to furnish a proper deterrent to violation of Town motor vehicle parking, stopping, or standing. BE IT ENACTED BY THE TOWN OF MELBOURNE BEACH, FLORIDA: SECTION 1. That Section 30-43.1 of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows:

§ 30-43.1 PENALTIES FOR VIOLATIONS OF CERTAIN TOWN PARKING REGULATIONS. (a) Any person cited for a violation of Sections 30-42 and 30-43(a)(5), (b)(3) of this code, shall be deemed to be charged with a noncriminal infraction and shall be assessed a civil penalty according to the following schedule: $35 $25 for a violation of any of the offenses in Section 30-42(a), (b) and (c); and $100 for a violation of any offense in Section 30-43(a)(5) and (b)(3). With regard to

Sections 30-42 and 40-43(a)(5), (b)(3), this sub-section shall supersede §1-99 1.99, Town Code.


(a) In the event that any term, provision, clause, sentence or section of this Ordinance shall be held by a court of competent jurisdiction to be partially or wholly unenforceable or invalid for any reason whatsoever, any such invalidity, illegality, or unenforceability shall not affect any of the other or remaining terms, provisions, clauses, sentences, or sections of this Ordinance, and this Ordinance shall be read and/or applied as if the invalid, illegal, or unenforceable term, provision, clause, sentence, or section did not exist. (b) In interpreting the provisions of this Ordinance, the following rules and symbols shall apply:

(1) Words underlined are additions to existing text. (2) Words stricken through are deletions from existing text. (3) Asterisks (* * *) indicates a deletion from the Ordinance of text existing in the Code of Ordinances. It is intended that the text in the Code of Ordinance denoted by the asterisks and not set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance.

SECTION 3. Ordinances and Resolutions in Conflict. All ordinances or resolutions or parts thereof that may be determined to be in conflict herewith, except portions of the Comprehensive Plan, are hereby repealed. SECTION 4. Effective Date. This Ordinance shall become effective upon adoption. PASSED by the Town Commission of the Town of Melbourne Beach on first reading on the 18th day of June, 2008, and ADOPTED by the Town Commission of the Town of Melbourne Beach, Florida, on final reading on the 16th day of July, 2008.

TOWN OF MELBOURNE BEACH, FLORIDA By: _________________________________ William G. Stacey, Mayor

ATTEST: ___________________________________ Christina Hoffkins, Town Clerk (Town Seal)


AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA RELATING TO THE QUALIFYING DATE TO RUN FOR TOWN COMMISSION; MAKING FINDINGS; AMENDING CHAPTER 13 SECTION 13-6 OF THE TOWN CODE OF ORDINANCES; CHANGING THE DATES PRIOR TO THE TOWN ELECTION TO QUALIFY TO RUN FOR TOWN COMMISSION; PROVIDING FOR SEVERABILITY/ INTERPRETATION; PROVIDING FOR REPEAL OF ORDINANCES AND RESOLUTIONS INCONSISTENT HEREWITH; AND PROVIDING AN EFFECTIVE DATE.

WHEREAS, based on changes in Florida law and schedules for elections in Brevard County, the Brevard County Supervisor of Elections has required that the ballot for all Town Commission candidates shall be provided to the Supervisor of Elections by not later seventy (70) days prior to the November general election in calendar year 2008;

WHEREAS, the Town Code of Ordinances provides that candidates filing for Town

Commission will close seventy (70) days prior to the election and write-in candidates will close sixty-three (63) days prior to the election, and the Town Code of Ordinances must be amended to comport with the directives and schedule of Florida law and the Brevard County Supervisor of Elections;

WHEREAS, Section 100.3605(2), Florida Statutes (2005), provides that:

100.3605. Conduct of municipal elections. (2) The governing body of a municipality may, by

ordinance, change the dates for qualifying and for the election of members of the governing body of the municipality and provide for the orderly transition of office resulting from such date changes;

WHEREAS, it is the intent of the Town Commission to comply with Florida law in

amending the dates for qualifying for municipal office. BE IT ENACTED by the Town Commission of the Town of Melbourne Beach,

Brevard County, Florida: SECTION 1. That Chapter 13, §13-6 of the Town Code of Ordinances of

Melbourne Beach, Florida, is hereby amended to read as follows:

Sec. 13-6. Time of Candidate Qualification.

Each candidate seeking the office of Mayor or Town Commission member shall seek to qualify for election to that office in the manner prescribed by the Town Charter, not

less than 12:00 noon on the 77 70 days nor more than 89 81 days prior to the date of such election. In computing the qualification days, the Election Day is to be excluded, but all Sundays and holidays are to be included. Should the 77th 70th day preceding an election fall on a Sunday, Saturday or holiday, the notice must be filed by 5:00 p.m. on the preceding business day. Each person seeking to qualify for election to office as a write-in candidate shall qualify for election to that office in the same manner prescribed by the Town Charter, on or before 12:00 noon of the 74th 63rd day prior to the general election.

SECTION 2. Severability/Interpretation Clause. (a) In the event that any term, provision, clause, sentence or section of this

Ordinance shall be held by a court of competent jurisdiction to be partially or wholly unenforceable or invalid for any reason whatsoever, any such invalidity, illegality, or unenforceability shall not affect any of the other or remaining terms, provisions, clauses, sentences, or sections of this Ordinance, and this Ordinance shall be read and/or applied as if the invalid, illegal, or unenforceable term, provision, clause, sentence, or section did not exist.

(b) In interpreting the provisions of this Ordinance, the following rules and symbols shall apply:

(1) Words underlined are additions to existing text. (2) Words stricken through are deletions from existing text. (3) Asterisks (* * *) indicates a deletion from the Ordinance of text existing in the

Code of Ordinances. It is intended that the text in the Code of Ordinance denoted by the asterisks and not set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance.

SECTION 3. Ordinances and Resolutions in Conflict. All ordinances or

resolutions or parts thereof that may be determined to be in conflict herewith, except portions of the Comprehensive Plan, are hereby repealed.

SECTION 4. Effective Date. This Ordinance shall become effective upon

adoption. THIS ORDINANCE WAS PASSED by the Town Commission of the Town of

Melbourne Beach on first reading on the 18th day of June 2008, and adopted on the second and final reading at a special meeting of the Town Commission on the 2nd day of July, 2008.

TOWN OF MELBOURNE BEACH,

FLORIDA, a Florida Municipal Corporation

By: ______________________________

William G. Stacey, Mayor ATTEST: _______________________ Christina Hoffkins, Town Clerk

(TOWN SEAL)

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AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, RELATING TO LAND DEVELOPMENT; MAKING FINDINGS; AMENDING SECTIONS 7A-36, 7A-37, 7A-38, 7A-52, 7A-152, AND 9A-7, LAND DEVELOPMENT CODE, APPENDIX A, TOWN CODE OF MELBOURNE BEACH, FLORIDA; ELIMINATING VOCATIONAL AND TRADE SCHOOLS AS A PERMITTED USE IN THE 6-B AND 7-C ZONING DISTRICTS AND AS A SPECIAL EXCEPTION IN THE 8-B ZONING DISTRICT; ELIMINATING COMMERCIAL RECREATION STRUCTURES SUCH AS BOWLING ALLEYS AND THEATRES, AND TESTING AND RESEARCH LABORATORIES AS SPECIAL EXCEPTION USES IN THE 6-B AND 7-C ZONING DISTRICTS; ELIMINATING RETAIL STORES AND SALES AND DISPLAY ROOMS, BUSINESS SCHOOLS, BANKS AND FINANCIAL INSTITUTIONS, PUBLIC AND PRIVATE PARKING LOTS AND PUBLIC RECREATION AREAS AS SPECIAL EXCEPTION USES IN THE 8-B ZONING DISTRICT; SPECIFYING THAT DRIVE-IN, DRIVE-THROUGH, AND DRIVE-UP USES ARE PROHIBITED USE IN THE 6-B, 7-C, AND 8-B ZONING DISTRICTS; CLARIFYING THAT THE TYPE OF RENTALS CURRENTLY PROHIBITED FOR PERIODS OF LESS THAN THIRTY DAYS ARE RESIDENTIAL RENTALS; RENAMING THE “CHURCH” SPECIAL EXCEPTION IN THE 6-B AND 7-C ZONING DISTRICTS AS A “HOUSE OF WORSHIP” SPECIAL EXCEPTION AND ADDING A STANDARD FOR APPROVAL; AMENDING SECTION 7A-52 BY PROVIDING LIMITATIONS ON ATTACHED SIGNS AND FREESTANDING SIGNS FOR SPECIAL EXCEPTIONS IN THE 6-B, 7-C, AND 8-B ZONING DISTRICTS; REMOVING REQUIREMENTS THAT NONCONFORMING SIGNS BE REMOVED IF A BUSINESS IS DISCONTINUED; ELIMINATING CERTAIN PAST-DATED SIGN REGULATIONS; AMENDING SECTION 9A-7 TO INCLUDE LANDSCAPE AND TREE STANDARDS FOR SPECIAL EXCEPTIONS; PROVIDING FOR SEVERABILITY AND INTERPRETATION; PROVIDING FOR THE REPEAL OF INCONSISTENT RESOLUTIONS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE.

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WHEREAS, the Traffic Circulation Element Objective 1.0 in the Town of Melbourne

Beach’s Comprehensive Plan (the “Comprehensive Plan”) states:

Objective 1.0 Prohibit Development that will result in [the] deterioration of the level of service below that level indicated as acceptable.

WHEREAS, the existing level of service (”LOS”) assigned by Policy 1.1 of the

Comprehensive Plan Traffic Circulation Element on A-1-A on Oak Street North of Ocean

Avenue is LOS D;

WHEREAS, the existing LOS assigned by Policy 1.1 of the Comprehensive Plan Traffic

Circulation Element on A-1-A on Ocean Avenue is LOS C;

WHEREAS, the existing LOS assigned by Policy 1.1 of the Comprehensive Plan Traffic

Circulation Element on A-1-A South of Ocean Avenue is LOS C;

WHEREAS, the Florida Department of Transportation reports that due to deteriorating

traffic conditions within the Town the LOS on A-1-A throughout the Town is now LOS D;

WHEREAS, the deteriorating traffic conditions further exacerbate conditions that strain

roadway infrastructure, detract from the low intensity/low density, “small town” beachside

character of the Town;

WHEREAS, Policy 1.1 will need to be amended to lower the permitted level of service

if any development on Ocean Avenue is to occur;

WHEREAS, future growth within the Town that has a high traffic generation capacity

will cause further deterioration of the traffic level of service on Ocean Avenue in violation of

Objective 1.0;

WHEREAS, Objective 2.0 of the Comprehensive Plan Traffic Circulation Element

requires that traffic circulation should be coordinated with future land use, meaning that in

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order to assist in controlling a deteriorating traffic circulation LOS within the Town’s business

district, high traffic generation land uses should be strictly controlled and minimized or

prohibited;

WHEREAS, a primary goal of the Town is to preserve the low intensity/low density

character of the Town with the goal of protecting the “small town” and “walkable” beach

community atmosphere of the Town;

WHEREAS, uses that promote high traffic generation and deteriorating traffic

conditions operate counter to the foregoing;

WHEREAS, the Planning and Zoning Board, sitting as both the Planning and Zoning

Board and the Local Planning Agency (collectively, the “LPA”), finds that Town should

discourage uses that will be high traffic generators;

WHEREAS, the LPA further finds that Town should discourage uses that, due to high

trip generation, will tend to further degrade the transportation level of service within the Town;

WHEREAS, the LPA finds that Town should discourage uses that, due to high trip

generation, are more oriented to automobile use and less oriented toward making the Town a

community oriented toward pedestrian shoppers and “walkable” in character;

WHEREAS, to assist in implementing that concept, the LPA notes that uses with drive-

through and drive-in facilities are among the highest traffic generators;

WHEREAS, the Trip Generation Manual, 7th Edition, published by the Institute of

Transportation Engineers (“Trip Generation Manual”) located in Washington, D.C., sets forth

trip generation based on in depth traffic analysis;

WHEREAS, the LPA finds that the most likely facilities to have a drive-through facility

would include financial institutions (banks) and fast food restaurants;

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WHEREAS, the Trip Generation Manual, Volume 3, states that trip generation for

financial institutions with a drive-through facility is 411 trips/per day/lane, while the trip

generation for a financial institution without a drive-through facility is only 32 trips/1,000

square feet;

WHEREAS, the Trip Generation Manual, Volume 3, states that trip generation for fast

food restaurants with a drive-through facility is 496 trips/per day/lane, while the trip generation

for a fast food restaurant without a drive-through facility is only 52 trips/1,000 square feet;

WHEREAS, the LPA has concluded, based on testimony provided by the Town

Planner, that drive-through facilities are high traffic generators detracting from the character of

a “walkable,” small beach town atmosphere;

WHEREAS, the LPA finds that not every imaginable use must be permitted in every

community, accord Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 2186

n.18 (1981) and 101 S.Ct. at 2191 (Stevens, J., concurring);

WHEREAS, the LPA has recommended that drive-through and drive-in type facilities

should be prohibited uses;

WHEREAS, there are already some high traffic generation uses with drive-through

facilities within the Town which the LPA finds should be reclassified as non-conforming uses;

WHEREAS, the LPA has recommended adoption of this Ordinance as being in

promotion of the public safety, aesthetics, and welfare as a means of protecting the “walkable,”

small beach town atmosphere of Melbourne Beach and and finds that based on the foregoing

Objectives and Policies in the Comprehensive Plan, among others, this Ordinance is consistent

with the Town’s Comprehensive Plan.

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SECTION 1. That Section 7A-36, Appendix A, of the Town Code of the Town of


§ 7A-36. 6-B DOWNTOWN BUSINESS DISTRICT.

(a) Intent. The provisions of this district are intended to apply on centrally located areas

adjacent to major arterial streets and convenient to major residential areas. The types of uses

permitted are intended to provide limited business activities serving the needs of residential

neighborhoods. Uses should reflect an atmosphere of providing basic consumer needs of the

residential community.

(b) Principal uses and structures. The following uses and structures are permitted for any

use or group of uses that are developed, either separately or as a unit with certain site

improvements shared in common:

(1) Retail stores, sales and display rooms, including places where goods are produced

and sold at retail on the premises.

(2) Personal service establishments such as barber and

beauty shops, laundry, and dry-cleaning pickup stations, and

tailor shops, and similar uses.

(3) Professional offices, studios, medical offices,

general offices, and business schools and similar uses.

(4) Vocational and trade schools not involving operations of an industrial nature.

(4) (5) Banks and financial institutions.

(5) (6) Educational and cultural institutions.

(6) (7) Public and private parking lots.

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(7) (8) Governmental and municipal buildings and public recreation areas.

(c) Accessory uses and structures: Customary accessory uses of one or more of

the principal uses clearly incidental and subordinate to the principal use and in keeping with the

low-density commercial character of the District.

(d) Special exceptions:

(1) Commercial recreation structures such as theaters, bowling alleys, and similar uses.

(2) Testing and research laboratories.

(1) (3) Eating and drinking establishments.

(2) (4) House of worship Churches.

a. A house of worship shall have a maximum of 150 seats in the main assembly area.

The main assembly area shall include side rooms and areas that can convert into

part of main assembly room.

(3) (5) Bed and breakfast inns. To be permitted, a bed and breakfast inn must meet the

provisions of § 7A-152(c)(2) and (3), Appendix A, Town Code, and the following

requirements:

a. (a) If the facility proposed to be a bed and breakfast inn is an existing structure(s),

the architectural features must be preserved. A rendering of the elevation must be submitted by

the applicant and shall be attached to the special exception approval to assure future

preservation of the architectural features; and

b. (b) Provide a six-foot non-solid masonry wall or substantially similar type of fence,

not less than 25% of its total area shall allow the free-flowing air passage while still serving as a

visual barrier adjacent to any single-family residences existing or permitted by zoning that abut

the bed and breakfast inn site.

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(e) Prohibited uses:

(1) Drive-in, drive-up, drive through, or any other similar feature that provides

for receipt of goods, services, food, money or information by a consumer while seated in a

motor vehicle.

(2) All all other uses not specifically or provisionally permitted herein.

(f) Lot and principal structures, sizes, and setbacks:

(1) Minimum lot area, 9,000 square feet.

(2) Minimum lot width, 60 feet (at front building line).

(3) Minimum lot depth, 150 feet.

(4) Maximum lot coverage, 50%.

(5) Minimum floor area, 300 square feet.

(6) Maximum height, 35 feet.

(7) Minimum yard requirements:

a. Front setback, 25 feet from lot line.

b. Side interior lot setback, none; provided a public access is available to

the rear of the lot for trash removal and fire protection. Otherwise, a minimum side setback of

15 feet on one side of the structure is required.

c. Side corner lot setback, 20 feet from lot line.

d. Rear setback, 20 feet from lot line, except 25 feet when abutting a

residential area, and 15 feet when abutting an alley.

e. Ocean setback. No building or structure shall be constructed on

oceanfront property within the town boundaries seaward of the coastal setback line established

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pursuant to Chapter 5A. In addition to the structures permitted in Chapter 5A, beach access

shall be permitted by an elevated boardwalk supported on pilings with appropriate steps.

(g) Landscaping regulations: Front and side yard setbacks (excluding parking areas and

driveways) shall be landscaped with ground cover, trees, and shrubs; other decorative

arrangements such as rock gardens, walkways, dwarf trees, cobble, brick and like arrangements

may be acceptable. Uncovered parking areas shall be landscaped with trees and shrubs. Except

for driveways, the areas abutting the street rights-of-way from the curb to the property line shall

be landscaped. The rights-of-way from the curb to the property line shall be landscaped and

maintained by the owner. However, in no case shall the area landscaped be less than 20% of

the total lot area, not including rights-of-way.

(h) Sidewalk and parking lots: Sidewalks and parking lots shall be constructed and

maintained by the owner along the public streets or highways abutting any developments in this

District.

(i) Supplementary regulations: As provided in § 7A-50 through 7A-69.



§ 7A-37. 7-C GENERAL COMMERCIAL DISTRICT.

(a) Intent. The provisions of this district are intended to apply on centrally-located areas

adjacent to major arterial streets and convenient to major residential areas. The type of uses

permitted are intended to provide business activities serving the needs of residential

neighborhoods and the motorist. Uses should reflect an atmosphere of providing basic

consumer needs of the residential community.

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(b) Principal uses and structures. The following uses and structures are permitted for any

use or group of uses that are developed, either separately or as a unit with certain site

improvements shared in common:



(2) Personal service establishments such as barber and beauty shops, laundry, and dry

cleaning pickup stations, and tailor shops and similar uses.

(3) Professional offices, studios, medical offices, general offices, and business schools

and similar uses.


(4) (5) Banks and financial institutions.


(6) (7) Public and private parking lots.


(8) (9) Service stations. Stations shall be

prohibited from storage or display of rental trucks and

trailers, storing vehicles, and excessive lighting and noise.

(c) Accessory uses and structures: Customary accessory uses of one or more of the principal

uses clearly incidental and subordinate to the principal use and in keeping with the low-density

commercial character of the District.


(1) Commercial recreation structures such as theaters, bowling alleys and similar uses.

(2) Testing and research laboratories.

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(1) (3) Eating and drinking establishments

(2) (4) House of worship Churches.

a. A house of worship shall have a maximum of 150 seats in the main assembly area.

The main assembly area shall include side rooms and areas that can convert into

part of main assembly room.


(1) Drive-in, drive-up, drive through, or any other similar feature, excepting

service stations, that provides for receipt of goods, services, food, money, or

information by a consumer in a motor vehicle.

(2) All all other uses not specifically or provisionally permitted herein.

(f) Lot and principal structures, sizes and setbacks:


(2) Minimum lot width, 60 feet (at front building line).



(5) Minimum floor area, 300 square feet.




b. Side interior lot setback, none; provided a public access is available to

the rear of the lot for trash removal and fire protection. Otherwise, a minimum side setback of

15 feet on one side of the structure is required.


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d. Rear setback, 20 feet from lot line, except 25 feet when abutting a

residential area, and 15 feet when abutting an alley.

(8) Service station requirements:

a. Building setbacks shall be a minimum of 70 feet from road rights-of-

way with canopies and pumps at a minimum of 30 feet; on streets where no

pumps are located,setbacks shall be at least 55 feet.

b. Two curb cuts for ingress and egress are required for each street side.

All curb cuts which adjoin state-controlled rights-of-way must also be approved

by the State Department of Transportation.


driveways) shall be landscaped with ground cover, trees, and shrubs; other decorative





maintained by the owner. However, in no case shall the area landscaped be less than 20% of the

total lot area, not including rights-of-way.

(h) Sidewalk and parking lots: Sidewalks and parking lots shall be constructed and


District.

(i) Supplementary regulations: As provided in § 7A-50 through 7A-69.



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§ 7A-38. 8-B RESIDENTIAL-BUSINESS ZONE.

(a) Intent. The provisions of this district are intended to apply to the historical area of the

town along Ocean Avenue. Lot sizes and other restrictions are intended to promote and protect

medium-density residential and business development while preserving adequate open space

and the historical nature of the area and ensuring compatibility with other areas of the

community.

(b) Principal uses and structures:

(1) Multi-family residences.

(2) Single-family residences (provided such residences meet 3-RS requirements).

(3) Duplexes.

(c) Accessory uses and structures: Customary accessory uses of one or more of the principal

uses clearly incidental and subordinate to the principal use and in keeping with the intent and

purpose of the District.




(1) (2) Personal service establishments including such as barber and beauty shops, and

laundry and dry-cleaning pickup stations, tailor shops and similar uses.

(2) (3) Professional offices, studios, clinics, and general offices, business schools

and similar uses.


(5) Banks and financial institutions.


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(7) Public and private parking lots.


(5) (9) Bed and breakfast inns


(1) Residential rental Rental units rented for periods of less than one month.

(2) Drive-in, drive-up, drive through, or any other similar feature that provides for

receipt of goods, services, food, money or information by a consumer while seated in a motor

vehicle.

(3) All other uses not specifically or provisionally permitted herein.

(f) Lot and principal structures, sizes, and setbacks:


(2) Minimum lot width, 60 feet (at building setback line).



(5) Minimum floor area.

a. Single-family structures, 1,400 square feet including one-half of the garage area not

to exceed 200 square feet, excluding porches.

b. Multifamily structures:

1. One-bedroom apartment, 800 square feet minimum.

2. Two-bedroom apartment, 1,000 square feet minimum. Additional bedrooms

require an increase of 150 square feet for each additional bedroom.

3. Duplex, 2,000 square feet (1,000 square feet for each dwelling unit).

4. Businesses, 300 square feet minimum.

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(6) Maximum density, 15 dwelling units per acre.




b. Side interior lot setback, none; provided a public access is available to the rear of

the lot for trash removal and fire protection. Otherwise, a minimum side setback of 15 feet on

one side of the structure is required.


d. Rear setback, 20 feet from lot line; except 25 feet when abutting a residential area,

and 15 feet when abutting an alley.

(9) Minimum distance between structures on the same lot, 15 feet.


driveways) shall be landscaped with ground cover, trees and shrubs; other decorative





maintained by the owner. However, in no case shall the area landscaped be less than 20% of

the total lot area, not including rights-of-way.

(h) Sidewalk and parking lots. Sidewalks and parking lots shall be constructed and


district.

(i) Supplementary regulations: As provided in §§ 7A-50 through 7A-69.

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§ 7A-52. SIGNS.

(a) Single-family districts:

(1) Permitted signs and regulations.

a. Sign exceptions (enumerated in § 7A-52(g)).

b. Prohibited signs (enumerated in § 7A-52(h)).

(b) Multi-family districts (4-RM, 5-RMO). Single-family dwellings in this district will

follow sign criteria for single-family districts.

(1) Permitted signs and size regulations: One attached sign or one freestanding sign shall

be permitted per apartment complex. Attached signs shall not exceed 25% of the total surface

area of the wall to which the sign is attached. In no case shall any attached sign exceed nine

square feet in total surface area. Freestanding signs shall not exceed nine square feet in total

area nor ten feet in height.

(2) Sign regulations:

a. Sign setbacks and additional information (enumerated in § 7A-52(e)).

b. Nonconforming signs (enumerated in § 7A-52(i)).

c. Sign exceptions (enumerated in § 7A-52(g)).

d. Prohibited signs (enumerated in § 7A-52(h)).

(c) Business districts (6-B, 7-C).

(1) Permitted signs and size regulations:

a. One attached sign (See § 7A-3) per business establishment excluding signs

installed, affixed, or painted on windows or doors. Attached signs shall not exceed 10% of the

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total surface area of the front of the building to which the sign is attached or exceed 24 square

feet in total surface area except that buildings with over 30 linear feet of frontage may add an

additional six square feet of sign for each ten linear feet of frontage over the 30 feet.

Measurement of fronts of buildings will include false fronts and mansard roof. Attached signs

for special exception uses shall be limited to a maximum of 24 square feet.

b. 1. One freestanding sign (§ 7A-3) per building structure. Where there is more than

one business in the same building structure, each business may advertise on the same sign but

the total sign area may not exceed 45 square feet or 20 feet in height. However, a freestanding

sign for each business is permitted provided these signs can be placed 50 feet from the

freestanding or shingle sign of a neighboring business but must not exceed 32 square feet or 20

feet in height.

2. Freestanding signs positioned less than 20 feet forward of the front building line

may not exceed 12 square feet in surface area and ten feet in height. Signs positioned 20 feet or

more forward of the front building line may not exceed 22 square feet in surface area and 15

feet in height. For each additional ten feet behind the front building line over 20 feet, an

additional two square feet may be added to the surface area of the freestanding sign to a

maximum of 32 square feet and one additional foot in height may be added to a maximum of 20

feet. These signs may be set on the property line.

c. One shingle sign not to exceed 12 square feet per business establishment is

permitted in lieu of the freestanding sign in front.

d. All business establishments are permitted one shingle sign at the rear of each

establishment, provided said sign does not exceed 12 square feet.

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e. Freestanding signs for special exception uses. Freestanding signs in the 6-B and 7-C

zoning districts shall be monument style signs. The maximum size shall be 32 square feet. The

maximum height shall be 10 feet. The minimum setback is 5 feet. Only one freestanding sign is

allowed per special exception site. The sign shall be constructed of materials that are

architecturally compatible with the primary building on the site. The sign shall not have

internal lighting. Spot lights illuminating the sign shall be shielded so that the source of light is

not visible to vehicular traffic or pedestrians. Shingle signs are not permitted for special

exceptions. To the extent of any inconsistency in this Section 7A-52 with other sections, with

regard to special exceptions this sub-paragraph supersedes other provisions in this Section 7A-

52.

(2) Sign regulations.

a. Sign setbacks and additional information (See division (e)).

b. Nonconforming signs (See division (f)).

c. Sign exceptions (See division (g)).

d. Prohibited signs (See division (h)).

(d) Residential-business districts (8-B).

(1) Permitted signs and size regulations:

a. One attached sign or one freestanding sign shall be permitted per apartment

complex.

b. One attached sign shall be permitted per business establishment. Attached signs

shall not exceed 10% of the total surface area of the wall to which the sign is attached or exceed

16 square feet in total surface area except that buildings with over 30 feet of frontage may add

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an additional four square feet of sign for each ten linear feet of frontage over 30 feet. Attached

signs for special exception uses shall be limited to a maximum of 16 square feet.

c. One freestanding sign per commercial structure shall be permitted.

d. The total surface area of all freestanding signs shall not exceed 25 square feet or 15

feet in height. Such signs must be a minimum of 20 feet from the front building line. Signs less

than 20 feet are allowed but may not exceed ten feet in height and nine square feet in surface

area.

e. Freestanding signs for special exception uses shall be monument style signs. The

maximum size shall be 20 square feet. The maximum height shall be 8 feet. The minimum

setback is 5 feet. Only one freestanding sign is allowed per special exception site. The sign

shall be constructed of materials that are architecturally compatible with the primary building

on the site. The sign shall not have internal lighting. Spot lights illuminating the sign shall be

shielded so that the source of light is not visible to vehicular traffic or pedestrians. To the

extent of any inconsistency in this Section 7A-52 with other sections, with regard to special

exceptions this sub-paragraph supersedes other provisions in this Section 7A-52.

(2) Sign regulations.

a. Sign setbacks information (See division (e)).

b. Nonconforming signs (See division (i)).

c. Sign exceptions (See division (g)).

d. Prohibited signs (See division (h)).

(e) Sign setbacks and additional regulations.

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(1) Signs may be placed on the property line. In no case may a freestanding or shingle

sign be placed within 20 feet of an intersection unless the bottom of said sign is ten feet or more

from the ground.

(2) Attached signs affixed to a building shall be placed only on the front facade or roof

and shall not protrude above the roof line or beyond the side corners of the front facade, project

out more than two feet from the wall or extend more than one-half the distance above the base

of the roof to the roof peak.

(3) Signs of any type may not be placed on the roof of any structure.

(4) It shall be unlawful for any owner or permittee to fail to remove any sign after ten

days which advertises business, real estate or products no longer conducted, available or for

sale on the premises. After notice to any owner, permittee, or real estate agency, the town may

remove any sign which is in violation of this provision and charge the agency, permittee, or

owner a $10 fee for the removal of the sign which is in violation of this provision.

(5) Indirect lighting sources in use shall be shaded to eliminate glare on roadways, streets

or surrounding properties.

(6) Internally lit signs and signs illuminated by neon lights or bare bulbs shall not exceed

two foot candles illumination at any property line. When property abuts a residential zone,

illumination of signs shall not exceed two foot candles.

(f) Nonconforming signs.

(1) A sign or advertising structure existing within the town limits on the effective date of

Ordinance 85-7, passed November 12, 1985, or a sign or advertising structure existing in an

area annexed to the town after the effective date of this Land Development Code, which, by its

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height, square foot area, location, or use of structural support does not conform to the

requirements of this Land Development Code shall hereafter be termed nonconforming.

(2) All nonconforming signs or advertising structures within the town limits shall be

permitted to remain until such time as:

a. Reserved. The business or services using the sign or advertising structure is

discontinued.

b. The sign or advertising structure becomes a hazard or obstruction.

c. It becomes necessary to replace or rebuild the sign or building, at which time it

shall conform to this section.

d. That three years have passed from the date of Ordinance 85-7, passed November

12, 1985. In the event that a nonconforming sign is on newly annexed land, the three years will

begin running as soon as the annexation shall become effective.

(3) No conforming sign or sign structure shall be erected on the same lot with an existing

nonconforming sign until the nonconforming sign has been removed.

(4) Window signs. If a change in use occurs, no internally illuminated signs shall be

allowed.

(g) Sign exceptions. The following signs are exempt from the provisions of this section:

(1) Memorial signs, tablets, plaques or names of buildings and date of erection when the

same are two square feet or less in size and are cut into any masonry surface or when

constructed of bronze or other noncombustible material.

(2) Property numbers and names of occupants of premises having no commercial

connotations and shall not exceed one square foot of total surface area.

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(3) Legal notices and identification, informational or directional signs erected or required

by governmental bodies.

(4) Flags and insignia of any governmental level.

(5) Traffic and other municipal signs, legal notices, railroad crossing signs and other

safety directional signs.

(6) Private directional signs when not more than two square feet in surface area.

(7) Subdivision entrance signs not exceeding 32 square feet and not having any part of

the sign structure exceeding eight feet in height. No more than two signs per entrance will be

allowed.

(8) Bulletin boards and signs of churches, schools and clubs not exceeding 32 square feet

in area and not exceeding one per organization. If located on a corner lot, a 32-square-foot sign

facing each street is allowed.

(9) A construction or home improvement sign shall not exceed 16 square feet in surface

area, not to be illuminated, and shall be removed immediately after completion of construction

or improvement.

(10) Any dispensing mechanism positioned outside of a business premise such as for ice

cream, candy, soda, newspapers and such or for fuel pumps and the like, with a trademark or

identification; also, any lighting fixture for the sole purpose of aiding in after-dark business

operations or safety with a trademark or identification.

(11) One real estate sign per interior lot or one sign facing each thoroughfare per corner

lot shall be allowed. Real estate signs shall not exceed six square feet in total surface area or

four feet in height.

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(12) Political signs shall be permitted and display of the sign shall conform to the

following:

a. Maximum size of a political sign, four square feet.

b. Signs may not be placed on rights-of-way.

c. Political signs must be removed within 72 hours after the election.

(h) Prohibited signs.

(1) All other signs not specifically or provisionally permitted herein, such as flashing

signs, billboard signs and banner signs, and signs which employ the words “stop” or “danger”

so as to imply the necessity for stopping or the existence of danger, or which by other means

make such an implication.

(2) No sign is permitted on rights-of-way.

(3) Real estate “sold” signs.

SECTION 5. That Section 7A-152(c), Appendix A, of the Town Code of the Town of


§ 7A-152. POWERS AND DUTIES.

* * *

(c) Special Exceptions.

(1) Limitations. The Board of Adjustment shall have the authority to hear and

decide only such special exceptions as it is specifically authorized to pass on by the terms of

this Land Development Code; to decide such questions as are involved in determining whether

special exceptions should be granted; and to grant special exceptions with such conditions and

safeguards as are appropriate under this chapter or other applicable ordinances; or to deny

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special exceptions when not in harmony with the purpose and intent of the Land Development

Code. A special exception shall not be granted by the Board unless and until:

a. A written application for a special exception is submitted indicating

the section of this chapter under which the special exception is sought and stating the grounds

on which it is requested.

b. Notice shall be given at least 15 days in advance of the public hearing.

The owner of the property for which a special exception is sought or his agent shall be notified

by certified mail. Notice of such hearing shall be posted on the property for which a special

exception is sought, at the Town Hall, and shall be published in a newspaper of general

circulation within the Town.

c. A courtesy notice shall be mailed to the property owners of record

within a radius of 500 feet. The town's failure to mail or the fact that the intended recipient shall

not receive a courtesy notice shall in no way invalidate any action taken by the town or its

Boards and Commissions.

d. Any party may appear in person or be otherwise represented at the

public hearing. The Board shall make such findings and determinations as it is empowered

under the various sections of this chapter to do so.

(2) Submittal Requirements.

a. Development plans that include complete architectural drawings of all

faces of a building and an overhead view shall be submitted with all special exception

applications that include a new building(s), façade renovations, or substantial improvements to

an existing building. The drawings shall be submitted in color and at the minimum shall

include:

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• Architectural Style

• Exterior construction material specifications

• Color charts

• A site plan (see §7A-51)

• Structure dimensions and setbacks from all property lines

• Refuse service area location

• Mechanical outdoor equipment location

• Master outdoor lighting plan

• Screening devices

• Master signage plan

• Master landscaping plan

• Wall or Fence details

• Other information determined necessary by the Town to ensure consistency with the

purpose and intent and the provisions of the Land Development Code.

Specific requirements are found in section 7A-152(c)(3) and in section 7A-52 relating to

signage, section 7A-53 relating to walls and fences; and section 9A relating to landscaping and

trees, all in the land development code.

b. Applications that propose a change of use in an existing building to a

special exception use where architectural changes are not required or planned shall not be

subject to architectural requirements with the exception of paint color. The building and site

shall be retrofitted to meet other special exception criteria to the extent determined by the board

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of adjustment. Landscaping of any existing open space areas and compliance with the signage

and lighting requirements shall be required.

c. The applicant shall also submit as a part of the application a narrative

that explains how the use and the development will be compatible with surrounding uses in its

function, its hours of operation, the type and amount of traffic to be generated, building size and

setbacks, its relationship to land values and other factors that may be used to measure

compatibility.

(3) (2) Review criteria. Before any special exception shall be issued, the board

of adjustment Board shall make written findings certifying compliance with the specific rules

governing individual special exceptions, and that the grant of the special exception as depicted

on the development plans satisfactory provisions and arrangements have been made concerning

the following, where applicable meets or exceeds the following standards:

a. Architectural style. Building design and construction, including but

not limited to, exterior building materials specifications, shall conform to the Bungalow, Frame

Vernacular, 1800’s Tidewater Style, Key West, or Gothic Revival architecture. Other historical

architectural styles may be permitted upon application to the board of adjustment, if the

applicant demonstrates and the board of adjustment determines that the utilization of such style

contributes positively to the historic character of the Town and is consistent with the intent of

the land development code. Examples of architectural style shall be available in the office of the

building official. Ingress and egress to property and proposed structures thereon with particular

reference to automotive and pedestrian safety and convenience, traffic flow and control and

access in case of fire or catastrophe;

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b. Compatibility. The special exception, as depicted on the development

plans, is compatible with adjacent and nearby uses, developments, structures, and

neighborhoods and will not alter the character of the community and neighborhood or be

contrary to emerging development trends in the community and the neighborhood. Off-street

parking and loading areas where required, with particular attention to the items in division

(c)(1) above, and the economic, noise, glare or odor effects of the special exception on

adjoining properties and properties generally in the district;

c. Building orientation. Buildings shall be oriented so as to enhance the

appearance of the streetscape. Refuse and service areas, with particular reference to items in

division (c)(1) and (2) above;

1. All facades of a building that face a road shall have an

entrance to the building that is parallel to the roadway. The building shall not be limited to

entrances facing roadways. Alternative entrances facing parking lots, driveways, or open space

are permitted. The entrance to the building shall face parallel to the public right-of-way.

2. Each façade that is visible from a public right-of-way shall be

designed with full architectural treatment including door and window placements, façade

architectural treatments and detail, roof design, and building materials applications necessary to

give the appearance that each visible façade is a primary façade.

3. The architectural treatment requirements shall also be applied

to any building façade that is situated where it is clearly visible from a public area of an

adjoining site, unless the town board of adjustment allows landscape buffering to serve as an

alternative to the architectural treatment.

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4. Building orientation shall ensure that service areas are placed

out of view from public rights-of-way, parking areas, and adjacent properties. Where, because

of site constraints service areas can not be so located, such areas shall be screened from view by

vegetative or structural means. Any structural screening shall be architecturally compatible with

the principal building in terms of style, colors, construction materials, and finish.

5. Mass, bulk, and scale of all structures shall be compatible with

other structures and uses both in the same zoning district and in the neighborhood.

d. Exterior materials and colors. Exterior building materials and colors

contribute significantly to the visual impact of a building on a community which in turn,

reflects upon the visual character and quality of a community. In order to project an image of

high quality town aesthetics, exterior building materials and colors shall conform to the

following requirements: Utilities, with reference to locations, availability and compatibility;

1. All buildings shall be faced with materials that exhibit a

durable, high quality appearance.

2. Acceptable exterior facing materials shall include those that

are consistent with the architectural style of the building.

3. Exterior colors shall be historically consistent colors used

along Ocean Avenue. These colors are dominated by pastels and shades of white. Accent

colors and colors consistent with the proposed architectural style may be approved if

determined to be compatible with the character of surrounding and nearby structures.

4. Building materials and colors shall be consistent around the

entire building. The application may include proposed exceptions to this requirement. The

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board of adjustment may grant exceptions, if it is demonstrated that the proposal remains

compatible with the Ocean Avenue corridor and adjacent residential uses.

5. Once a final development plan has been approved a change in

color(s) shall be made only after application to, and approval by, the board of adjustment.

e. Roof design. Roofs are an integral part of building design, and shall

be designed and constructed to compliment the character of the building. Roof design and

construction shall conform to the following requirements: Screening and buffering with

reference to type, dimensions and character;

1. Roofs shall be constructed of durable high quality material in

order to enhance the appearance and attractiveness of the town. Roofing materials shall be

similar in appearance with materials that are historically consistent with the architectural style

of the building.

2. The design of roof structures shall be consistent with the

architectural style of the building and shall extend to all sides of the building.

3. Roofs shall be designed to be of a height, bulk, and mass so as

to appear structural even when the design is non-structural.

f. Refuse service areas. Signs, if any, and proposed exterior lighting

effects and compatibility and harmony with properties in the district;

1. Refuse service areas shall be located in a manner that

minimizes impacts to adjacent residential properties.

2. Refuse service areas shall be screened from adjacent

properties and rights-of-way by an enclosure that is constructed of durable building materials

such as concrete, stone, or brick. The enclosure shall be faced with the same style as the façade

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of the primary structure on the site. The gate to the enclosure shall have a similar appearance as

the façade of the building. The enclosure shall be the same color as the primary structure.

3. Enclosures shall be large enough and located in a manner that

service vehicles can access the dumpster while it is in the enclosure.

g. Mechanical equipment operation and location.

Required yards and other open spaces;

1. Mechanical equipment shall be located in a manner that

minimizes impacts to adjacent residential properties.

2. Mechanical equipment, including equipment located on roofs

shall be screened from view of adjacent residential properties and rights-of-way. Screening

shall be of a material that is consistent with the architecture of the building.

h. Lighting. Height;

1. Outdoor lighting shall be arranged so that the light source is

shielded from adjacent residential properties and rights-of-way. Light fixtures shall a type that

directs the light downward.

2. Outdoor lighting shall be arranged so that no portions of

adjacent residential properties are covered by the light shadow. There shall be no glare or

spillover effect of lighting from the property on which a special exception is approved to

adjacent properties, and all lighting shall comply with Section 46-91 through 46-97, Brevard

County Code, relating to safeguarding nesting female and hatchling marine turtles from sources

of artificial light.

i. Landscaping and trees. Landscaping and trees are subject to specific

requirements for special exceptions found in chapter 9A of this land development code.

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j. Signs. Signs are subject to specific requirements for special

exceptions found in section 7A-52 of this land development code. Renewal or termination

dates; and

k. Walls and Fences. Walls and fences are subject to specific

requirements for special exceptions found in section 7A-53 of this land development code.

That the use will be reasonably compatible with surrounding uses in its function, it hours of

operation, the type and amount of traffic to be generated, building size and setbacks, its

relationship to land values and other factors that may be used to measure compatibility.

l. Comprehensive Plan. No special exception shall be granted unless it

is first determined by the board of adjustment that the special exception and development plans

are consistent with the comprehensive plan. A special exception shall not be presumed to be

consistent with the comprehensive plan merely because it is listed in the land development code

as a special exception in a given zoning district.

(4) Prohibited activities. Special exception uses that include the following

activities shall not be approved:

a. Utilizes shared parking from a zoning district that allows a higher

intensity use.

b. Combines the property with property in a zoning district that allows a

higher intensity of use where it will result in a larger structure on the property proposed for the

special exception than would otherwise be permitted.

c. Has a drive-in, drive-up, drive through, or any other similar feature

that provides for receipt of goods, services, food, or information from a motor vehicle.

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(5) Site plans. No special exception shall be effective unless it conforms to a

site plan in compliance with the requirements of section 7A-51, which site plan is approved by

the town commission. All development shall comply with the site plans considered by the

board of adjustment, unless the site plan is otherwise modified and approved by the planning

and zoning board and/or the town commission.

(6) (3) Conditions and safeguards. In granting any special exception, the Board

of Adjustment may prescribe appropriate conditions and safeguards in conformity with this

Land Development Code. Violation of such conditions and safeguards, when made a part of the

terms under which the special exception is granted, shall be deemed to be a violation of this

Land Development Code and punishable as provided by this code. The Board shall prescribe a

time limit within which the action for which the special exception is required shall be begun or

completed, or both. Failure to begin or complete, or both, such action within the time limit set

shall void the special exception.



§ 9A-7. MININUM TREE PLANTINGS.

(a) Trees in residential zoning districts. A minimum of three trees must exist or must

be planted on each newly developed residential lot. Trees planted must be of a variety which is

compatible with the existing soil and drainage-conditions and must be provided with adequate

water and food materials to encourage growth. Trees shall be planted in locations so as not to

cause damage to nor interference with existing structures at the time of maturity.

(b) Buffer and tree planting requirements for special exception uses.

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(1) A landscape buffer with a minimum of 10 feet in width shall be provided

between any residentially zoned property and a property utilized for a special exception use.

The landscape buffer shall include a minimum of one (1) canopy tree for every 40 linear feet, or

fraction thereof. In addition one ornamental tree or palm shall be planted for each 50 linear

feet, or fraction thereof.

(2) A landscape buffer with a minimum of 10 feet in width shall be provided

along all road frontage of the site. The landscape buffer shall include a minimum of one

canopy tree for every 25 feet of frontage, or fraction thereof.

(3) A continuous hedge shall be planted in all perimeter landscape buffer areas.

(4) Parking areas shall be designed so that there is a minimum of 200 square

feet of open space, not including perimeter landscape buffer areas, at the end of each row of

parking. In addition a minimum of 200 square feet of open space shall be provided in the

interior of the parking lot for each 10 parking spaces, or fraction thereof. These open spaces

shall be distributed through out the parking lot in a manner that no more than 10 parking spaces

in a row shall be allowed with out an intervening landscaped area.

(5) Minimum specifications for trees and hedge material shall be as follows:

a. Canopy trees at the time of planting shall have a trunk diameter of

3 inches measured 4.5 feet above the ground. The trees shall be a minimum of 10 feet in height

and have a minimum spread of 7 feet.

b. Ornamental trees at the time of planting shall have a trunk

diameter of 1.5 inches measured 4.5 feet above the ground. The trees shall be a minimum of 6

feet in height and have a minimum spread of 4 feet.

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c. Palms at the time of planting shall have a minimum clear trunk of

8 feet.

d. Hedge material at the time of planting shall be a minimum of 24

inches in height when planted. Individual plants shall be planted a maximum of 24 inches on

center.

(6) All plant material shall be Florida Number 1 in quality and shall be planted

according to sound landscape installation standards.

(7) All landscaping shall be maintained to present a neat and orderly

appearance. Dead, deteriorating, or missing landscape material shall be replaced with

substantially equivalent landscaping as permitted by the land development code. Replacement

of landscaping material shall occur within 60 day, unless said time is extended by the town

manager for good cause shown.

(8) Exceptions shall be considered on an individual basis when obstacles such

as overhead power lines or other conditions inhibit the ability to comply.

(9) Canopy trees shall be those that develop a crown spread of 30 feet or greater

at maturity. Trees with less than 30 feet of crown spread at maturity shall be considered

ornamental trees.


(a) In the event that any term, provision, clause, sentence or section of this

Ordinance shall be held by a court of competent jurisdiction to be partially or wholly

unenforceable or invalid for any reason whatsoever, any such invalidity, illegality, or

unenforceability shall not affect any of the other or remaining terms, provisions, clauses,

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sentences, or sections of this Ordinance, and this Ordinance shall be read and/or applied as if

the invalid, illegal, or unenforceable term, provision, clause, sentence, or section did not exist.

(b) In interpreting the provisions of this Ordinance, the following rules and

symbols shall apply:

(1) Words underlined are additions to existing text.

(2) Words stricken through are deletions from existing text.

(3) Asterisks (* * *) indicates a deletion from the Ordinance of text

existing in the Code of Ordinances. It is intended that the text in the Code of Ordinance

denoted by the asterisks and not set forth in this Ordinance shall remain unchanged from the

language existing prior to adoption of this Ordinance.

SECTION 8. Ordinances and Resolutions in Conflict. All ordinances or resolutions or

parts thereof that may be determined to be in conflict herewith, except portions of the


SECTION 9. Effective Date. This Ordinance shall become effective upon adoption.

PASSED by the Town Commission of the Town of Melbourne Beach on first reading on the 20th day of August, 2008, and ADOPTED by the Town Commission of the Town of Melbourne Beach, Florida, on final reading on the 3rd day of September, 2008.


ATTEST: _______________________________ Christina Hoffkins, Town Clerk (Town Seal)


AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, AMENDING SECTION 1A-3; PROVIDING FOR DEFINITIONS; AMENDING SECTIONS 7A-34, 7A-35, 7A-36, 7A-37AND 7A-38 OF THE MELBOURNE BEACH CODE OF ORDINANCES; PROVIDING FOR USE OF WALLS AND FENCES AS A BUFFER BETWEEN COMMERCIAL AND MULTI- FAMILY ZONED PROPERTY AND RESIDENTIAL USES; AMENDING SECTION 7A-53 OF THE TOWN OF MELBOURNE BEACH CODE OF ORDINANCES; PROVIDING FOR THE PLACEMENT, LOCATION, HEIGHT, AND MAINTENANCE OF WALLS AND FENCES; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR INCLUSION IN THE CODE OF ORDINANCES; PROVIDING AN EFFECTIVE DATE.

NOW, THEREFORE, be it enacted by the Town of Melbourne Beach, Florida, as follows: Section 1. Section 1A-3 of the Code of Ordinances of the Town of Melbourne Beach, Brevard County, Florida is hereby amended as follows: Words underlined are proposed for addition. Words in strikethrough are proposed for removal. FENCE. A structure providing enclosure and/or visual barrier between the area enclosed and the adjacent property. A FENCE may not be a non-structure, including but not limited to a hedge, consisting of growing material of sufficient height and density as to provide an enclosure and/or a visual barrier. HEDGE. A row of bushes or small trees planted close together in such a manner as to form a boundary or barrier. WALL. A structure forming a physical barrier which is so constructed that less than 50% of the vertical surface is open to permit the transmission of light, air and vision through such surface in a horizontal plane. Barrier: A wall, fence or hedge limiting the movement of people across a boundary. Fence: A freestanding structure designed to restrict or prevent movement across a boundary constructed of vinyl, chain link, or wood of a known non-deteriorating species or factory-treated to reduce deterioration. Hedge: A row of closely planted shrubs or low-growing trees forming a boundary that is

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substantially opaque in that it operates to block light emissions to abutting property. Wall: A free standing structure designed to restrict or prevent movement across a boundary constructed with a footer and of masonry products. Section 2. Sections 7A-38 is hereby amended as follows: Words underlined are proposed for addition. Words in strikethrough are proposed for removal. § 7A-38. 8-B RESIDENTIAL-BUSINESS ZONE.

(j) Where a rear or side line of a developed lot abuts residentially zoned property (1-RS, 2-RS, or 3-RS single-family residential, or 4-RM or 5-RMO multi-family residential zoning districts) and the 8-B property has been granted a special exception use permit, a nonsolid masonry wall, or structurally similar type of wall, excluding wood and vinyl, six feet in height, shall be constructed on or parallel to that rear or side lot line. Not less than 25% of the total surface area of the wall shall allow the free-flowing passage of air while still serving as a visual barrier. The wall shall be erected by the owner of the 8-B zoned property. The wall shall extend the full length of the adjoining residential property, but shall be no higher than four feet, forward of the front building line of an adjoining residential lot. Further, the wall shall comply with Code requirements for vision clearance at corners and curb lots. Walls shall be maintained in good condition, free from peeling paint, ,etc., by the owner of the 8-B zoned property.

(k) Where the rear or side line of a developed lot abuts residentially zoned property (1-RS,

2-RS or 3-RS single-family residential zoning districts) and the 8-B property is used for multi-family residential purposes, a fence, six feet in height, shall be constructed parallel to that rear or side lot line. The fence shall be erected by the owner of the 8-B zoned property. The fence shall extend the full length of the adjoining residential property located in 1-RS, but shall be no higher than four (4) feet, forward of the front building line of the adjoining residential lot. Further, the fence shall comply with code requirements for vision clearance at corners and curb lots. Fences shall be maintained in good condition by the owner of the 8-B zoned property.

Section 3. Section 7A-53 of Code of Ordinances of the Town of Melbourne Beach, Brevard County, Florida, is hereby amended as follows: Words in strike through are proposed for removal. Underlined words are proposed additions. § 7A-53. FENCES AND WALLS. Limitations and restrictions. All fences which term as used herein also includes, but is not limited to, walls, hereafter constructed, reconstructed, or altered, shall meet the following requirements:

(1) Zoning Requirements Zoning District Allowed Minimum Requirement 1-RS Fence, Hedge, Wall None 2-RS Fence, Hedge, Wall None 3-RS Fence, Hedge, Wall None 4-RM Wall Wall upon criteria listed in 7A-53(11)

(separating residential property) 5-RMO Wall Wall upon criteria listed in 7A-53(11)

(separating residential property) 6-B Wall Wall (separating residential property) 7-C Wall Wall (separating residential property) 8-B Fence, Wall Fence (separating residential zoning

districts [1-RS, 2-RS, 3-RS] when the 8-B property is used for multi-family residential use) Wall (separating residential zoning districts [1-RS, 2-RS, 3-RS] when a special exception has been granted for the 8-B property)

(1)(2) Fence Height- All zoning districts except as otherwise provided:

a. Fences on rear property lines may be erected up to a height of six feet. b. Fences on interior side lot lines may be erected up to a height of six feet up to

the front building line. c. Portions of Fences that extend beyond the front building line may be erected

up to a height of 4 feet. d. Fences on corner side lot lines may be erected up to a height of 6 feet up to

the front building line. e. Portions of Fences on corner side lot lines that extend beyond the front

building line may be erected up to a height of 4 feet. f. Chain link fences, to a height of ten feet, may be erected around tennis

courts. The fences may be erected on the property line, behind the front building line, or on the rear property line, if the fence does not encroach upon any easements, rights of way, or similar encumbrances.

(2) (3) Fence Height Measurement

The height of a fence is measured from the finished grade of the property immediately adjacent to the fence, prior to berming or placement of fill in excess of that required by the Code of Ordinances, to the highest point of the fence. A sealed survey with reference elevations a maximum of ten (10) feet apart along all property lines shall be submitted with all wall and fence permit applications. Fence height shall be measured from the surveyed elevation prior to placement of fill.

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(3) (4) Vision Clearance at Corners Fences on corner lots shall not be located within the triangular clearance area formed

by lines that are measured from the point of intersection of the rights-of way a distance of 25 feet, along the lot lines, parallel to each street and the line that connects the endpoints of the two lines measured from the point of intersection of the rights-of-way.

(4) (5) Maintenance All fences shall be continuously maintained in a good and non-deteriorated condition,

free of graffiti, peeling or blistering paint, broken or missing boards or posts, broken concrete block masonry, etc.

(5) (6) Submission of plans and building permits. Plans showing the exact location of all fences and the proposed height, construction,

and materials to be used, shall be submitted to the Building Official for approval, and the issuance of a permit for same upon payment for the permit. Termite and rot-resistant durable wood or rust and corrosion resistant material (or finish) shall be used.

(6) (7) Fencing of easements, rights-of-way, and sidewalks. In the event a lot owner fences or encloses any utility easement, as a condition of any

fence permit, the lot owner agrees and understands that utilities, rights-of-way, and sidewalks may need repair, maintenance, installation or removal, from time to time, and that to do so it may be necessary for utility companies or public and governmental agencies, or their respective employees, agents, or independent contractors, to remove certain portions of a lot owners fence. The lot owner/occupant agrees as a permit condition to hold harmless the Town, any other governmental agencies, and any utility company, and their respective employees, agents, officials, and independent contractors, in both their official and individual capacities, from any costs related to fencing or damages to fencing arising from removal, repair, installation or maintenance of any utilities, rights-of-way, sidewalks or fences. As used in this paragraph, the term utilities shall include Cable Television Companies., if the fence or enclosure is removed or destroyed in the act of installing, removing, repairing, or maintaining any utilities, rights-of-way or sidewalks.

Prior to issuance of a building permit for a fence or wall constructed on an easement

or right-of-way the property owner shall sign an affidavit stating agreement with the conditions of this section.

(7) (8) Installation. Fencing shall be installed in such a manner as not to detract from the value of the

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adjoining residential property; in particular, the fence side facing adjoining property must be comparable in construction and appearance to the fence side facing the fence-owners property. Walls and fences shall be installed abutting the property line in such a manner that they are located entirely on the property of the owner of the structure.

(8) (9) Fences abutting beach or river access way or rights-of-way.

Fences up to a height of six feet are allowed adjacent to and abutting any public or

private motor vehicle or pedestrian access or right-of-way connecting to the Indian River Lagoon or the beach along the Atlantic Ocean. Said fence may be located forward of the front building line; provided that said fence shall not be of a chain-link type. All of said fence shall be setback a minimum of five feet from any right-of-way line.

(9)(10) Hedges. (a) Where hedges are provided they shall be neatly trimmed and maintained. Hedges

are permitted to be planted and grown immediately adjacent to fences.

(b) Where existing hedges are utilized in any zoning district as an alternative to a fence, consistent with this code, on February 18, 1998; said hedge may continue to be utilized as a substitute for a fence; provided, that said hedge is at all times, living, neatly trimmed and maintained, and is substantially opaque in that it operates to block light emissions to abutting properties. At such time a hedge used as a substitute for a fence pursuant to this paragraph is no longer living or is in such condition that it is no longer substantially opaque in that it operates to block light emissions to abutting properties, then the property owner shall install a fence that conforms to this section.

(10)(11) Existing walls barriers, or lack thereof, shall be replaced or installed, that do not

conform with sections 7A-34, 7A-35, 7A-36, 7A-37 or 7A-38 as of the (effective date) of this ordinance shall be replaced with a conforming wall no later than five years after the effective date of this ordinance. barrier upon development, redevelopment representing fifty percent (50%) or more of the current market value of the improvements contained on the property, or a change in the use of the property consisting of residential to commercial or residential to a special exception use.

(11) In locations where walls conforming the requirements of sections 7A-34, 7A-35, 7A-

36, 7A-37 or 7A-38 are required but no longer exist, for any reason, a conforming wall shall be constructed within 180 days of the effective date of this ordinance.

(12) Walls that do not conform with sections 7A-34, 7A-35, 7A-36, 7A-37 or 7A-38 that

are removed, damaged beyond 50 percent of the length of the wall, or fall into a state of disrepair, shall be replaced with a conforming wall within 180 days of removal, damage, or notification by the Town that the wall must be replaced due to the state of disrepair.

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Section 4. All ordinances or parts of ordinances in conflict herewith are repealed and all ordinances or parts of ordinances not in conflict herewith are hereby continued in full force and effect. Section 5. If any portion, clause or phrase, sentence or classification of this ordinance is held or declared to be either unconstitutional, invalid, inapplicable, inoperative, or void, then such declaration shall not be construed to affect other portions of the ordinance. It is hereby declared to be the express opinion of the Town Commission of the Town of Melbourne Beach that any such unconstitutional, invalid, inapplicable, inoperative, or void portion or portions of this Ordinance did not induce its passage and that without the inclusion of any such portion or portions of this Ordinance, the Town Commission would have enacted the valid and constitutional portions hereof. Section 6. It is the intention of the Town Commission of the Town of Melbourne Beach that the provisions of this Ordinance shall be made a part of the Town of Melbourne Beach Code of Ordinances and sections may be renumbered to accomplish such intention. Section 7. The provisions within this Ordinance shall take effect immediately upon the enactment date. Section 8. PASSED by the Town Commission of the Town of Melbourne Beach on first reading on the ________ day of _______________, 2008, and ADOPTED by the Town Commission of the Town of Melbourne Beach, Brevard County, Florida, on final reading on the __________ day of ________________, 2008. Town of Melbourne Beach, Florida ATTEST: ______________________________________ ____________________________________ Christina Hoffkins, Town Clerk Mayor Rita A. Karpie Town Seal

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